Balancing the Risks of the Treatment Plan With the Patient’s Future

By Aryeh S. Klonsky, Esq. and Alexandra M. Lopes, Esq.
Monday, November 1, 2021
Category: 

Discussing fertility preservation options with pediatric cancer patients

Aryeh S. Klonsky, Esq. and Alexandra M. Lopes, Esq.

Aryeh S. Klonsky, Esq. and Alexandra M. Lopes, Esq.

A multitude of thoughts race through a parent’s mind when their child receives a cancer diagnosis. Obviously, the greatest focus for parents and medical providers alike is to find the best suitable treatment plan for each patient. Medical providers should also consider the effects that certain cancer treatments may have on the child’s fertility and should be prepared to discuss these concerns with their patients.

Although fertility tends to be a sensitive topic, many cancer treatment options can negatively affect the patient’s fertility. For example, surgery and some chemotherapy drugs, particularly those with alkylating agents, can cause long-term damage to reproductive organs. Moreover, radiation therapy, particularly to the pelvis, spine and abdomen, increases the likelihood of permanent damage to the patient’s reproductive organs. Other factors, like the patient’s age, sex and genetics, as well as the type of cancer, also affect the patient’s fertility.

While it is difficult to predict whether a particular treatment plan will negatively affect a patient’s long-term fertility, medical providers should consider fertility preservation measures whenever a significant risk to fertility is suspected. It may also be beneficial to refer the patient to a fertility specialist to ensure that the patient has a more thorough understanding of the risks, benefits and alternatives associated with fertility preservation.

When fertility may be affected, the medical provider should consider tailoring the informed consent discussion to include available fertility preservation methods. Egg freezing and sperm banking are options for pediatric cancer patients who have started puberty. However, these measures are not available to patients who have not yet started puberty. Additionally, egg freezing requires two weeks of fertility drug treatment prior to harvesting, and some patients with aggressive cancers cannot wait several weeks to begin cancer treatment. Ovarian tissue freezing and — although experimental at this time — testicular tissue freezing may provide fertility preservation options for prepubescent cancer patients and pediatric patients with aggressive cancers. Ovarian tissue and testicular tissue freezing are surgical procedures that involve some of the same risks associated with other types of surgical intervention. Additionally, re-implantation of tissue may pose risks of cancer recurrence.

When discussing the known risks, benefits and alternatives to therapy, medical providers should consider the age of the pediatric patient and, when appropriate, consider the patient’s concerns regarding their own fertility. If a patient is under 18 but understands the potential fertility implications from the treatment plan, then the medical provider should consider involving the minor patient in the informed consent discussion.

Medical providers should be cognizant of the potential legal concerns when managing patient expectations in this context and should be cautioned that pediatric cancer patients and their families might feel differently about fertility preservation measures once the patient finishes treatment and reaches adulthood. This is especially true in New York, where the time for a pediatric patient to bring a lawsuit does not start to run until the patient turns 18, which can be years after the formulation of the treatment plan. Therefore, medical providers should consider including contemporaneous documentation in the medical record that memorializes the informed consent discussions. The documentation should incorporate the patient’s (when applicable) and guardian’s acknowledgment of the risks, benefits and alternatives of the treatment plan, and the risks, benefits and alternatives of the applicable fertility preservation measures. Ideally, the documentation should be individualized to the specific treatment options discussed and address the specific risks posed to the patient.

In sum, when treating pediatric cancer patients, in addition to advising patients of the available cancer treatment options, medical providers should also discuss the impact such treatment might have on the patient’s fertility. Appropriate documentation of the informed consent discussion addressing the patient’s options to preserve fertility, as well as the implications of each preservation option, are paramount in shielding the treating physician in a potential lawsuit in the future.


Partner Aryeh S. Klonsky and Associate Alexandra M. Lopes are attorneys at Martin Clearwater & Bell LLP, where they focus their practice on the defense of medical malpractice matters. For more information, visit mcblaw.com.