Malpractice Trends Involving Active Surveillance Across Cancers

Abstract

Objective: To characterize malpractice trends related to active surveillance (AS) as a treatment strategy across cancers. Background: Active surveillance is increasingly considered a viable management strategy for low-risk cancers. Since a subset of AS cases will progress, metastasize, or exhibit cancer-related mortality, a significant barrier to implementation is the perceived risk of litigation from missing the window for cure. Data on malpractice trends across cancers are lacking. Methods: Westlaw Edge and LexisNexis Advance databases were searched from 1990-2022 for malpractice cases involving active surveillance in conjunction with thyroid cancer, prostate cancer, kidney cancer, breast cancer, or lymphoma. Queries included unpublished cases, trial orders, jury verdicts, and administrative decisions. Data were compiled on legal allegation, procedure performed, and verdict or settlement rendered. Results: Five prostate cancer cases were identified that pertained to active surveillance. Two cases involved alleged deliberate indifference from AS as a management strategy but were ruled as following appropriate standard of care. In contrast, three cases involved alleged physician negligence for not having explicitly recommended AS as a treatment option, after complications from surgery occurred. All cases showed documented informed consent for AS, leading to defense verdicts for the physicians. No cases of AS-related malpractice were identified for other cancer types. Conclusions: To date, no evidence of successful malpractice litigation for active surveillance in cancer has been identified. Given the legal precedent detailed in the identified cases and increasing support across national guidelines, active surveillance represents a sound management option in appropriate low-risk cancers, with no increased risk of medicolegal exposure.