In a new study, Cedars-Sinai Cancer investigators explored malpractice trends related to active surveillance as a treatment strategy across cancers.
They found that to date, there has been no successful litigation related to active surveillance. Their research was recently published in the peer-reviewed journal Annals of Surgery.
Cedars-Sinai Cancer investigators analyzed comprehensive data from Westlaw Edge and LexisNexis Advance databases between 1990 and 2022 and examined federal and civil medical malpractice cases in all 50 states involving active surveillance for lymphoma and thyroid, prostate, kidney and breast cancer.
They found five prostate cancer cases related to active surveillance; no pertinent cases were found regarding active surveillance in any other cancers. In two of the five prostate cancer cases, the court defended the practice of active surveillance, determining that it was in accordance with national standards of “sound clinical judgment” and “accepted medical practices.” The other cases involved alleged physician negligence for not having recommended active surveillance as a treatment option, after the patients had complications from surgery. All cases were ruled in favor for the physicians, who had documented informed consent for active surveillance.
The authors concluded that given the legal precedent detailed in the identified cases—and increasing support across national guidelines—active surveillance is a sound management option in appropriate low-risk cancers and appears to present no increased risk of malpractice litigation.
The authors added that failure to discuss an NCCN-recommended approach as a treatment option with patients could be considered just as prone to litigation. Their recommendations to strengthen patient communication and guard against malpractice include thoroughly explaining active surveillance to patients, engaging with the institution’s compliance officers or legal counsel to develop standardized consent templates, and integrating patient preferences and personal values when proposing the treatment option.
