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Medscape Oncologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022
| Contributor Information
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Medscape Oncologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
A malpractice lawsuit is one of the most challenging experiences a physician will ever go through. Medscape's Malpractice Report 2021 surveyed more than 4300 physicians in 29 specialties who described why they were sued, how the lawsuit worked out, and the impact of their ordeal on their practice and their relationship with patients. In this slideshow, oncologists share their experiences — what was hardest, what sustained them, their sources of resilience, and what they learned from going through the process.
(Note: Some totals in this presentation do not equal 100% because of rounding.)
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Medscape Oncologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
A much smaller percentage of oncologists reported being named in a lawsuit, compared with 51% of physicians overall. The number is also considerably lower than what was reported by respondents in the 2019 and 2017 Medscape Oncology Malpractice Reports (54% and 53%, respectively). (Respondents could choose more than one answer.)
"Fewer people were seeking cancer care during the COVID pandemic, which might have impacted the number of lawsuits brought against oncologists," says Paul Walker, a New York City–based malpractice attorney at Walker Medical Law, who represents physicians and other healthcare professionals. "Additionally, a fair number of people who died of COVID were also older people, and often, older people get cancer, resulting in fewer older people who consulted an oncologist or were treated by one."
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Medscape Oncologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Similar to 2019 and 2017 survey results, complications from treatment/surgery was the most common reason for lawsuits among oncologists in 2021. This year, failure to diagnose/delayed diagnosis was the second most common reason, while in previous surveys, only a tenth of respondents cited failure to diagnose/delayed diagnosis as the reason for the lawsuit.
"Patient fears of contracting COVID-19 have led many to avoid seeking or resuming care, so delays in diagnosing new cancer cases could mean that more patients are diagnosed at a later stage of their disease, leading to potential adverse events and malpractice claims," according to David L. Feldman, MD, MBA, chief medical officer of The Doctors Company Group.
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Medscape Oncologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Malpractice insurance premiums can differ depending on location, litigation climate, specialty, and the extent of coverage chosen. Physicians in Rhode Island, Pennsylvania, New York, and New Jersey pay the highest malpractice costs, while those in North Dakota pay the lowest, according to data from Physicians Thrive, an advisory group that helps physicians manage their finances. A physician in New York can expect to pay at least five times more than a physician in California, Ohio, or Tennessee would pay for the same level of coverage.
Medscape's Malpractice Premium Report 2019 showed that oncologists were the specialists second most likely (after psychiatrists) to regard their malpractice premiums as "reasonable." Ob/gyns and general surgeons were the least likely.
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Medscape Oncologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Similar to other physicians surveyed, most oncologists were either "very" or "somewhat" surprised by the lawsuit, although fewer were surprised this year compared with 2019 and 2017 (82% vs 90% and 94%, respectively).
A common reason for being surprised is that the patient who sued was treated long ago. "The patient had not seen me for over 7 years and during that time, he did not call me with his new symptomatology. I was only named in the suit because I had previously been involved," wrote one oncologist. Another common scenario is being named in a suit brought by someone else's patient. One respondent wrote, "I was the chairperson of a department, and one of the doctors in the practice was involved in the suit. I was named as an accomplice."
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Medscape Oncologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Over half of oncologists said that they could have identified the patient who brought the suit, with figures comparable to those of physician respondents overall, but often that was not possible because it was not the patient who brought the suit. One oncologist wrote, "The family did not understand or accept the nature of cancer and different ways a patient can die of cancer-related medical conditions. In this case, the patient was bedbound and died of sepsis and pneumonia related to decubitus ulcers that were completely unrelated to her radiation treatment, but the claim was that she died from the treatment."
"Sometimes, it's not the patient who brings a lawsuit but the family," says attorney Dennis Hursh, of Physicians Agreement Health Law, a firm based in Pennsylvania. "The patient may even recognize that you did your best and be grateful for your skill and efforts, but the family can't accept that Grandma died of cancer and brings a lawsuit."
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Medscape Oncologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Most oncologists felt that the lawsuit was not warranted, although some were unsure, with figures similar to those of other physicians surveyed by Medscape. In 2017, almost all oncologist respondents (91%) thought the lawsuit was unwarranted.
"Oncology is at times an emotionally draining specialty. In fact, as implied by studies of burnout among oncologists, we put an enormous amount of our time and heart into our work. We may therefore be particularly vulnerable to feelings of frustration and anger when sued for false allegations," writes Patricia Legant, MD, a medical oncologist in South Jordan, Utah.
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Medscape Oncologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
The largest percentage of oncologists were dismissed from the suit before trial or prior to settling, a trend consistent with results of Medscape's 2019 and 2017 oncology malpractice surveys. When the lawsuit did go to trial, one tenth received a verdict in their favor from the judge/jury, a figure that hasn't changed since 2019.
"It seems that most of my clients end up being released from lawsuits, and many lawsuits are dismissed prior to proceeding to trial," says Hursh.
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Medscape Oncologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Preparing for a lawsuit is very time-consuming, with upward of 40 hours as the most common amount of time spent by oncologists. Close to a third of oncologists spent more than 40 hours preparing for their defense — less than the 44% who reported spending that amount of time on their defense in 2019, but more than the 27% in 2017.
Medical malpractice litigation is time-consuming too. Defense attorneys need to be educated on the medical issues, and expert witnesses need to be selected. "A physician defendant will need to be involved in most aspects of the case," says Michael J. Sacopulos, JD, an attorney with Sacopulos Johnson & Sacopulos, Terre Haute, Indiana.
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Medscape Oncologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Most surgeons reported that the lawsuit took 1-2 years, similar to the 40% of general physician respondents. In 2019 and 2017, the most typical amount of time for a lawsuit was also 1-2 years, although this year, fewer respondents reported having their lawsuit resolved in less than a year.
One reason a lawsuit can resolve in under a year is that the suit itself or the physician is dismissed within the first few months, an outcome reported by a fifth of respondents in 2021. "The patient had not seen me for over 7 years, and I was dismissed from the suit within the first months," one oncologist wrote. "The case was brought against the primary physician. I was named but was dismissed from the case within the first few months," wrote another.
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Medscape Oncologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
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Medscape Oncologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Most oncologists said they would have done nothing different, similar to physicians in general and consistent with oncologists' responses in 2019. The second highest percentage of oncologists in 2021 said they would not have taken on the patient to begin with — a little higher than the 12% who responded the same way in 2019.
Some oncologists said they would have been more conscientious in relaying the information to the referring physician. "Instead of writing the referring physician — which I did, and he received the letter — I should have called him as well." According to Evan Lyman, an associate attorney at Vouté, Lohrfink, McAndrew, Meisner & Roberts, LLP, in White Plains, New York, a common reason for lawsuits is a slip-up of communication between the specialist and the referring physician. Even if the specialist enters the information into the patient's EMR, there is no substitute for personal communication.
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Medscape Oncologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Similar to physicians in general, over half of oncologists felt that the outcome of the lawsuit was fair. One acknowledged having left a sponge in the patient and felt that compensation was fair because the patient required a second procedure to remove the sponge.
Some respondents felt that the outcome was not what they wanted because the insurance company insisted on settling the case. One wrote, "It was a wrongful suit that took 5 years to settle, an absolute rip-off, but the insurance company wanted to be done with the case."
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Medscape Oncologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Similar to physician respondents in general, most oncologists felt that apologizing to the patient would not have averted a lawsuit. In 2019, a higher percentage of oncologists felt that an apology would not have made a difference (91%).
"Empathy is always appropriate if a patient or family is suffering, but don't confuse empathy or sorrow with apology," says Peter A. Kolbert, JD, senior vice president, Claim and Litigation Services, Healthcare Risk Advisors, a division of TDC Group. "We can feel sorry and sad, but always be mindful that apologies can be misconstrued and should be reserved only for those situations when you didn't meet the standards you set for yourself, which are rare."
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Medscape Oncologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Most oncologists did not feel that the lawsuit ultimately affected their overall medical career, similar to physicians in general. Many respondents complained about the ongoing requirement to report the lawsuit — even if it was dismissed — to credentialing committees even decades later, and having to pay increased malpractice premiums, regardless of the outcome of the suit. "I still need to document this episode every single time I apply for any medical position, even more than 29 years after I was dismissed from the case," one respondent wrote.
"One lawsuit, unless it's really egregious and horrific, is unlikely to make much of a difference in a physician's long-term career, but a series of lawsuits could affect the doctor's privileges at his or her hospital as well as future employment, and that's much more serious," says Walker.
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Medscape Oncologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Similar to the overall population of physicians surveyed in 2021, more than half of oncologists said that nothing changed for them following the lawsuit, and a little over one tenth said they no longer trust patients. These are consistent with responses given by oncologists in 2019. Some respondents reported that they also lost trust in fellow physicians, and one wrote that he lost trust in the American legal and medical professions as a whole.
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Medscape Oncologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Almost no oncologists were named in any COVID-related allegation. In fact, few physicians' lawsuits were directly related to COVID, probably due to immunity provided to physicians and other healthcare workers against COVID-related claims, says attorney Charles Lohrfink, senior managing partner at Vouté, Lohrfink, McAndrew, Meisner & Roberts, LLP, White Plains, New York. Additionally, says Lohrfink, "American citizens are so grateful for the medical care that healthcare providers have received, where doctors and nurses have worked themselves to the bone trying to save the lives of patients with COVID, that plaintiffs' attorneys are reluctant to bring cases right now. They don't want to deal with juries who feel grateful to the medical community for what it has done since COVID."
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Medscape Oncologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Several oncologists were named in a lawsuit for an action committed by an NP or PA — virtually the same percentage as physicians in general, and only slightly higher than reported by oncologists in 2019.
A report funded by the Conquer Cancer Foundation Mission Endowment of ASCO found that these practitioners have "increasingly become integral members of the oncology care delivery team" and their numbers are expanding. "As these providers are increasingly playing a role in patient care, you should make sure you know your state's requirements for supervision and also the policies of your hospital or institution," says Hursh.
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Medscape Oncologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Most respondents were not concerned about being sued for malpractice over a COVID-related issue that occurred during the pandemic, although one tenth were. "Given that the pandemic caused a delay in diagnosis and treatment of many patients, we may start to see an uptick of lawsuits in 2022," says Lyman.
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Medscape Oncologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
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Medscape Oncologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
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Medscape Oncologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
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Medscape Oncologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
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Batya Swift Yasgur, MA, LSW
Reporter, Medscape Business of Medicine
Disclosure: Batya Swift Yasgur, MA, LSW, has disclosed no relevant financial relationships.
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