Despite the challenges and hazard of poor outcomes inherent to the practice of treating patients with cancer, oncologists enjoy an overall low risk of medical malpractice claims, and malpractice insurance costs for a medical oncologist are similar to those of a general internist.1 In addition, payouts are comparatively rare.2 Nonetheless, the practice of medicine in a high-stakes field such as medical and pediatric oncology will expose practitioners to risk; many of these risks are mitigatable.
While the overall coordination of cancer care generally is assumed by the medical or pediatric oncologist, the legal responsibility of detection, diagnosis, staging, excision, and palliation of cancer is generally the burden of other specialties. Thus, the primary procedure of the oncologist is the prescribing of chemotherapeutic medications. As these medications are toxic by nature, this procedure is also the primary source of litigation risk to oncologists.
The vast majority of cancer patients treated with systemic therapy will receive chemotherapy. Chemotherapy drugs, in general, have narrow therapeutic windows, which is the difference between effective and toxic or lethal doses, in comparison to other commonly used medications.3 Thus, medication errors involving chemotherapy are likely to cause harm.4 Unfortunately, chemotherapy errors are common; for example, in an exploratory survey of oncology nurses, 63% reported an occurrence of a chemotherapy medication error.5
Chemotherapy errors often result from errors in dosing or route or insufficient supportive care. Dosing errors may occur due to incorrect measurement of the patient’s body size or miscalculation of the resulting dose; certain medications, such as carboplatin, are of particular note due to the complexity of calculations as a result of factors such as targeting the area under the curve.6 Route errors can be particularly lethal; a review of the pediatric literature described a series of reports of vincristine given via the intrathecal route with 100% lethality despite various attempts to remove or flush the drug from the space.4 Supportive care for many medications involves hydration and/or diuresis, and some medications such as methotrexate require specific antidotes or protectants to be given to avoid toxicity.7
Malpractice as a legal concept in relationship to chemotherapy errors is relatively straightforward. The correct dosing and administration of chemotherapy medications are the standard of care; thus, errors in dosing and administration are both considered under the standard of care. Resolution of a malpractice claim thus depends primarily on who is at fault and whether harm was caused to the patient.
CASE LAW # 1
In 1995, Vincent Gargano was undergoing systemic chemotherapy as part of his therapy for testicular cancer.8 His physician intended etoposide 197 mg and cisplatin 39.4 mg every 24 hours for five consecutive days from May 26 through May 30. The resident physician wrote orders for etoposide 39.4 mg and cisplatin 197 mg instead, and the patient received ...