How Oncological Medical Malpractice Arises and Can Be Defended

By Michael A. Sonkin, Esq., and Michelle A. Frankel, Esq.
Thursday, October 17, 2019

Oncologists are not sued for medical malpractice as frequently as other specialists, but there are patterns in the types of situations that prompt medical malpractice claims against them. An awareness of these patterns can help oncologists better engage with their patients contemporaneously and hopefully prevent claims of negligence altogether. When a claim is made, having thorough and well-documented patient engagement and management helps demonstrate that the standard of care was met, which is imperative to a physician’s defense.

Michelle A. Frankel, Esq.

Michael A. Sonkin, Esq.

Claims for oncological malpractice were impacted by New York’s passage of Lavern’s Law in 2018, which extends the amount of time patients have to initiate a lawsuit. Traditionally, medical malpractice actions must be initiated within two and a half years from the date of negligence. Lavern’s Law enables patients to initiate actions within two and a half years from the date they discover the missed diagnosis, and can be up to seven years from the last date of treatment. This makes it even more important for oncologists to be mindful of their diagnosis and treatment of cancer patients and to appropriately document all care and treatment in the event of allegations that may not be brought until years later.

Since oncologists are primarily responsible for formulating cancer treatment plans and monitoring patient responses after being relied on to determine the type of cancer and stage, they may be associated with a patient’s team of physicians and be sued for one of the most common oncological claims: an alleged failure to diagnose cancer. This claim may involve a delayed diagnosis and/or misdiagnosis of cancer. Cases involving such factual scenarios are particularly problematic if the cancer was diagnosed at a time when it could no longer be treated. A plaintiff/patient’s attorney will argue that the patient’s chance of survival was negatively impacted by the physician(s’) negligence; in doing so, the plaintiff must rely on a physician expert with proficiency in the same specialty as the sued physician to argue that the cancer could have been treated earlier but for the physician’s negligence. In situations like this, the successful defense of a physician is reliant on a strong medical record detailing all tests performed as well as discussions with the patient about the results and follow-up care. Any informed consent discussions regarding surgical and nonsurgical treatment options (especially if talking about experimental vs. traditional treatments) must be well documented. All care and treatment decisions must comport with the standard of care as delineated in relevant guidelines while taking the patient’s history into consideration. Any inadequate explanations regarding test results, inaccurate interpretations, and/or gaps in follow-up care and treatment can weaken a physician’s defense.

While oncological-related negative outcomes are less likely to manifest in medical malpractice claims because they are less unexpected, diagnosing and treating cancer can give rise to unique issues and complications, which may serve as the basis for malpractice claims. For example, surgical oncologists may face claims related to an alleged failure to detect pre-existing conditions that might make surgery more dangerous, detect postoperative complications, perform sufficiently comprehensive cancer surgery and obtain clear margins. Medical malpractice claims may also arise from simple mistakes in the prescription, mixing and/or administration of chemotherapy drugs. The misplacement of a decimal, for instance, may lead to the administration of a lethal dosage or a dosage that has long-term negative effects on the liver, heart or another vital organ. Therefore, it is important to have systems in place to check treatment plans in terms of the actual prescriptions, effectiveness in treating the cancer, and monitoring for any negative side effects and/or complications.

Thorough management of cancer patients that is well documented will enhance the ability to successfully refute negligence claims and be persuasive to a jury.

Michael A. Sonkin, Partner, and Michelle A. Frankel, Associate, are attorneys in the Medical Malpractice Defense Practice Group at Martin Clearwater & Bell LLP. For more information, visit