The authors address radiation oncologists'particular concerns with increasing malpractice suits and the delicate balancing required in the role of expert witness.
Dr. Gunn and Dr. Deigert are American College of Radiology
board certified and practice radiation oncology in Montana. Dr.
Gunn is a graduate of Santa Clara University School of Law and
Dr. Deigert is a JD candidate at the Concord University School
Because in the past patients were often not expected to recover
from cancer, the radiation oncologist has enjoyed relative freedom
from actions for potential negligence. The general public used to
believe that anything a physician could do to achieve long-term
control of cancer, or even short-term symptom relief, was
acceptable or even desirable. That era is coming to an end. Now
each side effect of treatment is not only questioned by the patient
but likely to be challenged as malpractice.
In the case of surgery, it is the usual complications, not the
surgical errors, that result in claims filed.
In the case of radiation therapy, all complications, whether
explained before the procedure or not, are now probed by patients
and scrutinizing attorneys. The literature anticipates a severe
complication rate of 5%; if your patient happens to fall within
that group of 5%, more than an eyebrow will be raised. Each
complication, whether forewarned by the physician or not, will be
viewed as the result of medical negligence until and unless proven
A physician who is sued for professional negligence enters a
stress-filled arena. Much of the anxiety is due to the unfamiliar
legal language. A radiation oncologist may be called a
"tortfeasor"--one who commits a "tort." A
is defined as "a private or civil wrong or injury resulting from a
breach of a legal duty that exists by virtue of society's
expectations regarding interpersonal conduct rather than by
contract or other private relationship."
The word "tort" comes from the Latin "tortus," meaning "twisted";
the legal profession categorizes these lawsuits as tort negligence
cases, or cases concerning twisted events that have caused harm.
is one who harms someone else by twisting the normal situation.
Besides hearing unfamiliar legal terms such as these, the radiation
oncologist is subjected to the entire game plan of the legal
community and may be bombarded with pleadings, motions,
interrogatories, and depositions.
Coupled with this is the defendant's general reaction that he or
she was only trying to help the patient. This is the natural
outrage of a physician who has provided weeks of daily treatments
and examinations as well as months of follow-up care and who now
finds that the patient who was cared for carefully is now
initiating a lawsuit. Unfortunately, the feelings of anger and
distress created by these situations may last for years.
There is an old dictum that prevention beats cure every time.
But can all lawsuits be prevented or is it only possible to reduce
the risk of one? The answer of course is the latter, and the only
practical thing to do is to take some precautions. For example,
there is no substitute for documenting all discussions with
patients, family, friends, and technologists, as well as referring
and consulting physicians. Even short notes in the chart are
helpful. The physician should initial all of the tests he or she
reviews. If a test is cancelled, that should be initialed also,
with a notation in writing as to the reason for cancellation.
Legal "comparative negligence" occurs when two or more persons
are partially responsible for the same injury. If the patient
doesn't follow your advice, note it in the chart. If the patient is
taking an over-the-counter medicine or herbal remedy, the physician
should make note of it and discuss it with him or her. By the way,
pointing fingers at an involved colleague almost always ensures a
victory for the plaintiff.
Ironically, there is no clearly documented evidence as to under
which conditions malpractice suits are most likely to occur or even
as to how often harm is related to actual negligence.
However, many medical liability companies now require physicians to
attend practice-related lawsuit prevention courses or face paying
10% more for malpractice insurance coverage.
Beginning legal actions
Any treatment of cancer is associated with a small but definite
incidence of expected complications, some of which are
immediate-term and some of which are long-term. Should a
complication occur, the radiation oncologist should pore over the
patient's records to see that no obvious mistakes in treatments
were made. Recorded discussions, recorded data, technologist notes,
tests, and prescriptions should all be reviewed. The consent form,
if lacking or marginal, can cause an otherwise defendable case to
be settled. On the other hand, even when the form is well done and
detailed, it does not seem to necessarily have a positive effect on
the plaintiff or jury. The physician must also inform the patient
of the probable outcomes with, and without, treatment.
Keep in mind that the plaintiff's attorney, after listening to
the incident of alleged negligence, will discuss it informally with
a physician friend or acquaintance to ascertain the merits of the
case. The attorney then will contact a neutral radiation oncologist
to see if there has been a deviation from the
standard of care.
The standard of care is defined as what a reasonable radiation
oncologist of ordinary prudence would do in the defendant's place
under like circumstances. Since specialists have a national
standard of care, the attorney might contact anyone in the country.
When an attorney believes that there is a chance of negligence, he
or she contacts experts.
The expert witness
The best contribution an expert can make is whether or not the
case is worth pursuing. The expert witnesses are usually contacted
by a phone call from the plaintiff's or defendant's attorney. The
attorney will request an opinion by return phone call, rather than
a written report, because opinions may differ. These written
reports are not covered by lawyer-client privilege, and the
discovery by the opposing attorney of contradictory written reports
can be embarrassing to an attorney.
Some states have a legislative authorized medical-legal panel of
two physicians (of the same speciality as the defendant) and two
attorneys to act as screening experts to review cases before they
are permitted to be filed in court. Their findings are not binding
and the result may be privileged and confidential to any subsequent
proceedings; but they do influence opposing attorneys on whether to
continue lawsuits or not. This mechanism has significantly reduced
the number of cases pursued yearly.
The two most common questions put to expert witnesses before and
during a trial are demonstrated in the following two scenarios:
1. Since this case had a bad outcome, should the diagnosis have
been discovered earlier? If so, would that have altered the outcome
in even the slightest degree? Could the patient have lived a few
months longer, or have undergone less suffering? Would this earlier
discovery have led to different or less morbid treatment?
2. Were the complications this patient developed caused by his
or her cancer treatment and, if so, is there anything in the
records indicating that the doctor, physicist, technologist, nurse,
or equipment caused any deviation from the standard of care?
Should the panel or an expert reviewer say that some liability
may be present, the plaintiff's attorney will usually pursue the
case and commence further discovery efforts, compiling additional
records, interrogatories, and depositions. The plaintiff's experts
can be expected to be deposed by the defendant's attorneys and vice
versa. The experts are well advised to have reviewed the case
extensively prior to this deposition, because considerable time may
have elapsed since their original impression and new evidence may
It is also advisable for the expert to have indicated to his
hiring attorney just what his fees are and if they are different
for consultations, depositions, and trial testimony, if it comes to
that. Fees should be scheduled on an hourly basis and not be
contingent on the outcome.
Practical points for experts
There are obvious points and subtleties that can help an expert
prepare to give testimony. First, answer questions as clearly and
simply as possible. It is usually a mistake to amplify explanations
with extra details. A cross-examining attorney will probably be at
least as conversant with the details and can be expected to seize
upon any extraneous comment. The flood of questions that follows
may be aimed at discrediting the "expert" part of the expert's
Physicians are not used to the legal requirement that opinions
should be expressed in black and white terms without equivocation.
When an expert appears doubtful before a jury, his or her
credibility is called into question immediately. It is better to
say, "In my opinion, the injury is (or is not) related to the
defendant's actions or negligence" than to say, "it might have" or
"it could have" been related.
A cross-examining attorney might well inquire as to the expert
witness fees. The attorney might say, "How much are you being paid
for your testimony?" The appropriate answer should be, "I'm not
being paid for my testimony; I'm being paid for my time." Plaintiff
and defendant attorneys should always object if an embarrassing
question such as this is asked. The expert should never look at the
judge and say, "Do I have to answer that?" since doing so may
reflect poorly on the physician as an expert. The judge will always
reply, "Yes," anyway.
Sometimes the expert may be startled to learn the names of
opposing experts, since they may be nationally renowned. This
really should make little difference to the expert's own testimony
if he or she has prepared thoroughly. The expert will have the
opportunity to review all depositions in the case before trial.
Often an expert may not have reviewed case details in depth, and if
he or she appears arrogant to a jury, that expert's opinions may be
given less weight.
Because of mutual respect among radiation oncologists, it isn't
easy for plaintiff attorneys to find good experts, particularly in
the same region as the practicing defendant radiation oncologist.
Younger physicians just out of training may think that their style
or mode of treatment is the best and only way, but in this field,
as in others, it turns out that there are many ways to accomplish
the same results. The expert should point this out to the
The experienced expert puts himself or herself in the shoes of
both the plaintiff and defendant, since both the injured plaintiff
and the physician defendant deserve the expert's best efforts. It
is important for the expert not to testify exclusively for either
plaintiffs or defendants lest the expert be labeled as a prostitute
for one side or the other.
Settling of suits
Bear in mind that a settlement conference is
in many states before the case proceeds to trial. Both parties,
their attorneys, and the insurance representative try to reach a
compromise financial settlement. While these conferences are based
on the merits of the case, the economics of the proceeding and the
uncertainty of jury perceptions are crucial factors in deciding
whether to settle. The named physician will be torn between
insistence of his nonliability and the likelihood of a verdict for
Punitive damages--damages to punish the defendant and set an
exemplary precedent--are not frequently held in medical legal tort
cases of negligence. These damages are not usually covered by
liability insurance. However, it is extremely difficult to prove
that the physician intentionally and maliciously set out to harm
the patient rather than to help him.
While the physician may be certain that the jury would interpret
the facts in his or her favor, it is important to remember that
most juries will identify with the plaintiff cancer patient more
than with the physician. It takes a strong rebuttal to win them
over to the defendant's arguments. Documents of the lawsuit that go
to a central reporting agency, called the National Practitioners
Data Bank, may influence nonsettlement by physicians.
National Practitioners Data Bank
There is a state and national requirement that lawsuits and
settlements must be reported to the National Practitioner Data
Bank. This is not the type of bank that protects your assets,
however. This is an agency that is required to expose your
These records are reviewed as part of the inquiries made for
renewal of hospital staff privileges and state licenses. Currently,
these records are privileged information, but may be open to the
public in the future. There is a section provided in the report to
the data bank for the physician to explain the circumstances of the
lawsuit, and it is extremely important for the physician to do so
since it is human nature for others to use this explanation to
Some states have recognized that even frivolous lawsuits against
physicians are sometimes settled with compensation to the
plaintiff. They have tried to cap the amount of damages that can be
awarded, as they do in workers' compensation cases. Attorneys
argue, with some credibility, that the few who are negligent must
not be supported by the many who are not.
Professional organizations quietly recognize that physicians who
have been sued may not try very hard to cure subsequent patients.
They may prescribe less dosage to lower the incidence of
complications. "Once burned, twice shy," these radiation
oncologists may thereafter be afraid to deliver optimal radiation
treatment to their patients regardless of how many national experts
define proper dosages and tumor-target volumes to give the best
chance for cure with "an acceptable complication rate." It is
acceptable only to the patients who are not injured.
One approach that has been suggested is to allow patients to
subscribe to "complication risk insurance," similar to travel
policies sold in airline terminals. Since the expected severe
complication risk for a particular treatment can be calculated,
such a policy and its costs could be devised.
A final word
In diagnostic radiology, it is the "missed lesion" that is most
often the focus of a lawsuit. In therapeutic radiology, it is the
complication that is the focus, whether the patient has been
forewarned or not. It won't be long before combined
chemoradiotherapy complications will be the focus.
There are no known "best" answers for how to avoid lawsuits. It
seems simplistic to say, "Be conscientious, pursue ideal
treatments, and don't abandon your patients." From training and
literature, but primarily from experience, some radiation
oncologists develop a sixth sense about not taking on certain
Shall we wait for tort reform in Congress? Don't hold your
breath. Perhaps the old saying is right: wisdom comes from
experience, and experience comes from not
mistakes. In spite of the threat of lawsuits, or because of it,
keep trying to do the right thing for your patients and you'll
sleep with a clear conscience.