This chapter will cover the intersection of the practice of radiation oncology with the legal system by examining the epidemiology of medical malpractice risk, strategies to avoid malpractice risk, and advice to radiation oncologists who are sued. It will also provide examples of how the elements of a claim of negligence manifest in the specific context of radiotherapy practice. Radiation oncology risk in the business practice of medicine will also be briefly considered.
EPIDEMIOLOGY OF MALPRACTICE RISK IN RADIATION ONCOLOGY
Several strategies have been employed to create a picture of legal liability in the specialty, including surveys of members of the American Society for Radiation Oncology (ASTRO)1 or of radiotherapy alumni groups.2 These surveys have their limitations, as do reviews of cases reported in the legal literature, since only a minority of malpractice claims (around 8%)3 ever make it to completed litigation and only a portion of those cases are reported in the legal literature. Proprietary “jury verdict” reporting services can provide supplemental information,4 as can information from malpractice insurers, but there is no single pool of data for all malpractice claims against radiation oncologists. A survey of ASTRO members calculated an approximate annual cumulative risk of being sued to be on the order of 3%, making it likely that a practitioner will experience a claim at some point in their career.1 A “claim” does not equate to an indemnity payment of damages, however, as only a small percentage of claims result in a payment. One recent study looked at the radiation oncology claims collected by a trade association of malpractice insurers that insure approximately 60% of the private practice market. A “claim” against a radiation oncologist resulted in a payment in 28% of cases in this database.3 The average and median settlement values for the ten years of this study, ending in 2012, were $372,000 and $250,000, respectively. Radiation oncology settlements were 14% higher than the “all specialty” average, and claims were most common for radiation oncologists between the ages of 45 and 54 years.3 The most common disease sites were breast, prostate, and lung cancers. Another study of this same database, but through a different period of time, found that solo practitioners were more commonly sued.5 A study of yet another database, this one containing data from 30 academic institutions, found that head and neck, central nervous system, benign disease, and brachytherapy were the most common scenarios resulting in indemnity payments and that “technical skill, clinical judgment, and communication” were the top two contributing factors involved in a payment.6
STRATEGIES TO MINIMIZE MALPRACTICE RISK
The headwater of a malpractice case is a disgruntled patient; a bad outcome or even clear physician fault does not generate a court case without a patient making a “human” decision to sue. The source of that unhappiness may be ...