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A National WestlawNext Database Analysis of Malpractice Litigation in Radiation Oncology (FULL)
A rise in medical malpractice insurance premiums and malpractice claims has brought the issue of medical malpractice to the forefront of medicine over the past few decades.1 The VA has more than tripled the number of legal settlements it has made over the past 5 years, and it has paid more than $871 million in medical malpractice settlements over the past decade.2,3 Legislation by the federal and state governments in the U.S., collectively referred to as tort reform, has been passed to curb the rate at which malpractice claims are filed; to set caps on noneconomic damages, such as pain and suffering; to control the effect of these claims on insurance premiums; and to prevent the delivery of negligent and harmful medical care.1
An observed high prevalence of medical malpractice claims has significant consequences within the clinical setting and has given rise to the practice of defensive medicine.4-8 Even the perceived threat of possible tort action may lead to aberrant practice behaviors. These defensive medical practices may include excessive testing, unnecessary referrals to other physicians or health facilities, or even refusal to treat particular patients.4,9-11 Furthermore, physicians devote valuable time and energy engaging in lawsuits rather than in delivering quality care to their patients.12
The increasingly litigious environment has discouraged physicians from practicing medicine, leading to earlier retirement, geographic relocation, and restriction of scope of services, all limiting patients’ access to health care.13 One such figure reported in 2008 found that in the U.S., defensive medicine costs can total nearly $56 billion.14 Radiation oncology is generally considered a medium-to-low risk specialty for litigation.15,16 Its average annual indemnity payment in 2006 was $276,792 and has increased at a rate of $1,500 per year, ranking it fifth among 22 specialty groups.16 Studies revealed that the practice of defensive medicine is not strictly limited to the U.S. and has been reported in other countries.6,17-20,21
A recent study by Jena and colleagues found that nearly 10% of oncologists face a malpractice claim annually, the 10th highest among the specialties surveyed.22 Malpractice within the field of radiation oncology has been previously discussed in the literature.16,23,24 There are limited data that examine the basis for these claims, the resulting jury verdicts, and the subsequent indemnity payments associated with claims.24,25
In this study, the authors sought to describe radiation oncology malpractice claims over the past 30 years. It is hoped that this study will not only help traditional oncologists in particular, but also all other practitioners who might be included as co-defendants to be more aware of the common causes of action that plaintiffs have been using to sue.
Methods
This public and online study did not involve human subjects research and accordingly did not require institutional review board approval. The WestlawNext (Thomson Reuters, New York) online legal database was used to search retrospectively for state and federal jury verdicts and settlements related to radiation oncology and medical malpractice. The database is a collection of several thousand search engines that can locate court dockets, jury verdicts, and settlements compiled by attorney-editors. Local cases and claims that were dismissed prior to proceeding to trial or that were settled out of court were not available. All cases in the database were considered and provided this study’s sample size, spanning from January 1, 1985, to December 31, 2015.
Given the boolean search functionality integrated into the Westlaw database, search parameters included “radiation oncology” and “medical malpractice” to yield the greatest number of cases (n = 223). All derived cases were manually reviewed, and files that were duplicates or associated with litigation unrelated to radiation oncology were excluded from analysis (n = 191).
Analysis
Factors that were collected and considered included the state and county in which the claim was filed, the age and sex of the litigant at the time of malpractice, the year the case was settled, co-defendant specialties, jury verdicts, award payouts, death status of the litigant and the alleged basis for the medical malpractice claim. A lack of informed consent, a failure to treat in a timely manner, a failure to order appropriate tests or to make a timely referral, misinterpretation of a test, excessive radiation, unnecessary radiation, unnecessary surgery, and procedural error all were included as alleged bases for the malpractice claim. Descriptive statistics were then compiled.
Results
A total of 32 cases were included for analysis (Tables 1, 2, and 3). Anonymized summaries of all 32 cases are provided in the Appendix. The average age of the patient was 54.6 years (range 34-83) and included 17 (54.8%) female and 14 (45.2%) male patients. 
Excessive radiation (n = 11, 34.4%), unnecessary radiation (n = 8, 25%), and a failure to refer and/or order appropriate tests (n = 9, 28.1%) were the 3 most commonly alleged causes of malpractice. A lack of informed consent was implicated in less than one-seventh of cases (4; 12.5%). In 7 (21.9%) cases, the patient passed away. 
Between 1985 and 2015, decisions were made in radiation oncologists’ favor in more than half of the cases. The jury ruled for the plaintiff in 11 (34.4%) cases and for the defendant in 17 (53.1%) cases. Settlements were reached in 4 (12.5%) cases, with a mean payout of $1,476,775. 
Discussion
A physician’s duty is to provide medical care within the standard of care. In the courtroom, a radiation oncologist is judged on what a “reasonably prudent” radiation oncologist would do in similar circumstances.26 The plaintiff must establish the standard of care for the patient’s specific diagnosis with evidence, which is often accomplished through expert testimony. A physician is deemed negligent when deviating from this standard of care. The plaintiff must establish 4 factors to be awarded compensation for medical negligence: (1) the physician owed a professional duty to the patient such as the doctor-patient relationship; (2) the physician breeched this duty or failed to meet the standard of care; (3) proximate cause—the breach of duty by the physician directly caused the patient’s injury; and (4) the patient experienced emotional and/or physical damage while in the care of the physician.27
Reasons for Malpractice Claims
The WestlawNext search revealed 3 top theories of breach of standard of care: excessive radiation, unnecessary radiation, and a failure to refer and/or order appropriate tests. As a result, these theories can be interpreted as medical malpractice law in evolution. In other words, the courts still may be laying groundwork to clarify these theories.
However, a more cynical interpretation of why these 3 top theories of breech of standard of care were seen would note the practice of using expert witness testimony as “hired guns” in the U.S. legal system. Plaintiff attorneys know that use of expert witnesses can increase the attorney’s billable hours during the discovery phase and can decrease the likelihood that the case would be thrown out as lacking merit. Nevertheless, when the claim eventually does go to trial, it may lack merit, but not before plaintiff and defense attorneys complete many hours of work. This use of the legal system for financial gains can potentially confound the true reasons why the search resulted in these 3 top theories of breach of standard of care.
A lack of informed consent was not a major issue and was cited only in 4 (12.5%) cases as the cause of alleged malpractice. This finding was reassuring, as informed consent is an important issue that reinforces the physician-patient relationship and enhances patient trust. Previous studies found a perceived lack of informed consent as a basis for a malpractice claim in more than 34% of otolaryngology cases,25% of cranial nerve surgery cases,and 39% of facial plastic surgery cases.28-30 Perhaps the physician patient discussion in radiation oncology may be different compared with that of surgery, as treatments in radiation oncology are guided by large clinical trials, and patients are often referred after discussions with other specialty providers, such as surgeons and medical oncologists. Improving patients’ understanding of their radiation treatment plans is important in reducing malpractice claims relating to informed consent, and recent studies have identified areas where patient education can be improved.31,32
Settlements
Although settlements were reached in a minority of cases, the monetary value of jury verdicts favoring the plaintiff were 3-fold higher than those of out-of-court settlements. Specifically, cases that were settled had a mean payout of $1,476,775, which sharply contrasts with cases that proceeded to trial and a mean payout of $4,744,219. The highest jury award to the plaintiff was $16,000,000, involving a case where it was determined that a double dose of radiation was delivered to a patient’s shoulder. In a simple risk-reward analysis, this suggests that radiation oncologists should consider settling out of court if a malpractice guilty verdict seems possible. However, given the retrospective nature of the analysis, only limited conclusions can be drawn regarding the effectiveness of such a strategy.
Regardless, cases that were settled or judged on the plaintiff’s behalf were for a much higher value in radiation oncology compared with indemnity payment claims data in other high-risk specialties (emergency medicine, general surgery, obstetrics and gynecologic surgery, and radiology).33 It is important to highlight the magnitude of real and perceived harm that can be associated with radiation oncology. Regarding perceived harm, the public may lack an understanding of how radiation works. Interestingly, even though the perceived harm may be misplaced, the real harm is still there. Unlike other specialties where some errors can be reversed (ie, if heparin is mistakenly administered, its effects can be reversed by protamine sulfate), once radiation is delivered, it is not reversible. The harm is permanent and can cause disability.
Settlements are often lower in legal cases due to insurance policy limitations, the time line of award payout (settlement funds are paid more rapidly, as verdict awards are dependent on the conclusion of the case), and the inherent risk that an appeals court may overturn a verdict or reduce the amount of the award.34 For all the radiation oncology cases that proceeded to trial, more than half (53.1%) of the cases were in favor of the physician (Table 3). While this is positive news for radiation oncologists, it is still lower than the national average of 75% of malpractice verdicts in favor o
Geographic Locations
The concentration of cases in a few states in this analysis is likely due to a combination of factors, including the distinct legal climates in individual states and the geographic unequal distribution of radiation oncologists across the country. For instance, California’s Medical Injury Compensation Reform Act of 1975 caps limited pain, suffering, inconvenience, physical impairment, disfigurement, and other noneconomic and nonmedical damages in malpractice to $250,000.37-39 Because of this cap, plaintiffs and their attorneys may be more hesitant to file a suit.
Radiation oncologists also remain concentrated in highly populated metropolitan health service areas, likely due to the attractiveness of academic centers, the large patient base required to sustain a practice, and the large capital investment needed to obtain the radiation equipment and staff resources to establish practices.40-42
Evolving Malpractice Theories
Zaorsky and colleagues used a similar methodology to this study.24 However, the distinction between this study and the Zaorsky study is that the latter attempted to use medical malpractice cases to draw conclusions on the validity and utility of quality assurance programs, specifically the Accreditation Program for Excellence (APEx) and the Radiation Oncology Incident Learning System (RO-ILS).43-45 The APEx/RO-ILS systems report only errors and faults, and medical malpractice is based on different sets of variables, such as legal theories, litigation procedures, plaintiff/defense zealousness, and the judicial system of inclusion and exclusion of cases in the docket. It is not possible to control for these confounding variables. This study, in contrast to the Zaorsky study, distills the essence of medical malpractice in radiation oncology and draws conclusions to advance the theories of recovery of monetary damage.
Limitations
The WestlawNext database is a comprehensive source for outcomes and details in malpractice litigation and draws from multiple legal sources, but there are limitations to acknowledge. This study is a retrospective analysis and is limited by the inherent bias associated with its design. As noted in previous studies,28,46 some jurisdictions may include only cases reported by attorneys on a voluntary basis with the purpose of predicting future outcomes and awards.47 Settlements may be underrepresented in this study. Out-of-court settlements often are not filed with state or federal courts and thus do not become part of the public record. The level of detail in jury verdicts in this database also is heterogeneous, and each case has different details and varying depths emphasized.
A better source of settlements and plaintiff verdict awards may be the National Practitioner Data Bank (NPDB), an electronic repository created by the U.S. Congress. It contains information on medical malpractice payments and certain adverse actions related to health care practitioners, entities, providers, and suppliers. However, the reports are confidential and not available to the public.
This study had a low number of cases (n = 32), but the information provided is impactful given there is a lack of access to a better source. For instance, insurance companies provide claims data, but the data have been criticized because insurers may be biased in determining which data to release. As discussed previously, the NPDB is not available for public review. Therefore, it is uncertain how many of the medical malpractice cases the WestlawNext database captures.
Based on the discussion with multiple medical malpractice lawyers practicing in various jurisdictions across the country and law school reference librarians, there is a concurrence that about 70% to 90% of claims are not taken on by plaintiff attorneys because of lack of merit or for procedural legal reasons, such as when there is no standing or when the statute of limitations has expired. Of the 10% to 30% claims that proceed to trial, about 90% result in a confidential settlement. Moreover, the court can render an order or an opinion. If it is an order, the case is never recorded. If it is an opinion, the case still may not be included in the WestlawNext database. Only cases that are on appeal, with controversy, proceed through the state and federal appellate system; judges still can decide whether to publish the results from these cases. Depending on jurisdiction, these factors result in 20% to 92% of opinions not being published for any given year. However, opinions that are marked for publishing should be included in the WestlawNext database with negligible omissions and errors. The percentage of published cases in WestlawNext database of all claims could very well be only 1% to 5%.
Nevertheless, the WestlawNext database covers a large geographic area and is a comprehensive source of litigation information. The authors selected WestlawNext over other online legal databases (ie, Bloomberg Law, LexisNexis, VerdictSearch) due to its reputation, quality of case entries, and ease of navigation. WestlawNext is well known among lawyers and legal professions, and it has been validated through previous studies in other medical fields such as general surgery and its subspecialties,36,48 otolaryngology,28,46,47,49 ophthalmology,50 urology,51 dermatology,52 and plastic surgery.53
Conclusion
Litigation involving radiation oncologists were infrequent, and most verdicts were in favor of defendant radiation oncologists. Excessive radiation, unnecessary radiation, and a failure to refer and/or order appropriate tests were noted in most cases. Settlements were reached in the minority of cases, although mean payouts were more than 3 times less in these cases compared with jury verdicts. An increased awareness of radiation oncology malpractice litigation has the potential to improve physician-patient relationships and provide insight into the situations and conditions that commonly lead to litigation within the radiation oncology field.
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1. Mello MM, Studdert DM, Brennan TA. The new medical malpractice crisis. N Engl J Med. 2003;348(23):2281-2284.
2. Howard C, Blau R. Exclusive: legal settlements at Veterans Affairs more than tripled since 2011, many due to medical malpractices. http://www.nydailynews.com/amp /news/national/legal-settlements-veterans-affairs-triple -article-1.2654179. Published May 30, 2016. Accessed January 10, 2018.
3. Rosiak L. VA paid $871M in medical malpractice deals in past decade. http://amp.dailycaller.com/2015/12/17/va-has-paid-230m-in-medical-malpractice-settlements. Published December 17, 2015. Accessed January 11, 2018.
4. Studdert DM, Mello MM, Sage WM, et al. Defensive medicine among high-risk specialist physicians in a volatile malpractice environment. JAMA. 2005;293(21):2609-2617.
5. Bishop TF, Federman AD, Keyhani S. Physicians’ views on defensive medicine: a national survey. Arch Intern Med. 2010;170(12):1081-1083.
6. Carrier ER, Reschovsky JD, Mello MM, Mayrell RC, Katz D. Physicians’ fears of malpractice lawsuits are not assuaged by tort reforms. Health Aff (Millwood). 2010;29(9):1585-1592.
7. Hermer LD, Brody H. Defensive medicine, cost containment, and reform. J Gen Intern Med. 2010;25(5):470-473.
8. Rothberg MB, Class J, Bishop TF, Friderici J, Kleppel R, Lindenauer PK. The cost of defensive medicine on 3 hospital medicine services. JAMA Intern Med. 2014;174(11):1867-1868.
9. Martello J. Basic medical legal principles. Clin Plast Surg. 1999;26(1):9-14, v.
10. Kessler DP. Evaluating the medical malpractice system and options for reform. J Econ Perspect. 2011;25(2):93-110.
11. Rosenblatt RA, Detering B. Changing patterns of obstetric practice in Washington State: the impact of tort reform. Fam Med. 1988;20(2):101-107.
12. Seabury SA, Chandra A, Lakdawalla DN, Jena AB. On average, physicians spend nearly 11 percent of their 40-year careers with an open, unresolved malpractice claim. Health Aff (Millwood). 2013;32(1):111-119.
13. Mello MM, Williams CH. Medical malpractice: impact of the crisis and effect of state tort reforms. Research Synthesis Report No. 10. Princeton, NJ: The Robert Wood Johnson Foundation; 2006.
14. Mello MM, Chandra A, Gawande AA, Studdert DM. National costs of the medical liability system. Health Aff (Millwood). 2010;29(9):1569-1577.
15. Ramella S, Mandoliti G, Trodella L, D’Angelillo RM. The first survey on defensive medicine in radiation oncology. Radiol Med. 2015;120(5):421-429.
16. Marshall DC, Punglia RS, Fox D, Recht A, Hattangadi-Gluth JA. Medical malpractice claims in radiation oncology: a population-based study 1985-2012. Int J Radiat Oncol Biol Phys. 2015;93(2):241-250.
17. Baicker K, Fisher ES, Chandra A. Malpractice liability costs and the practice of medicine in the medicare program. Health Aff (Millwood). 2007;26(3):841-852.
18. Kessler DP, McClellan MB. How liability law affects medical productivity. J Health Econ. 2002;21(6):931-955.
19. Dubay L, Kaestner R, Waidmann T. The impact of malpractice fears on cesarean section rates. J Health Econ. 1999;18(4):491-522.
20. Lakdawalla DN, Seabury SA. The welfare effects of medical malpractice liability. Int Rev Law Econ. 2012;32(4):356-369.
21. Ortashi O, Virdee J, Hassan R, Mutrynowski T, Abu-Zidan F. The practice of defensive medicine among hospital doctors in the United Kingdom. BMC Med Ethics. 2013;14(1):42.
22. Jena AB, Seabury S, Lakdawalla D, Chandra A. Malpractice risk according to physician specialty. N Engl J Med. 2011;365(7):629-636.
23. Marshall D, Tringale K, Connor M, Punglia R, Recht A, Hattangadi-Gluth J. Nature of medical malpractice claims against radiation oncologists. Int J Radiat Oncol Biol Phys. 2017;98(1):21-30.
24. Zaorsky NG, Ricco AG, Churilla TM, Horwitz EM, Den RB. ASTRO APEx® and RO-ILS™ are applicable to medical malpractice in radiation oncology. Future Oncol. 2016;12(22):2643-2657.
25. Hattangadi J, Murphy J, Sanghvi P, Recht A, Punglia RS. A 25-year epidemiologic study of medical malpractice claims in radiation oncology. Int J Radiat Oncol Biol Phys. 2014;90(1)(suppl 9):S749.
26. Necessary elements of proof that injury resulted from failure to follow accepted standard of care. Washington State Legislature. Revised Code of Washington 7.70.040. 2011.
27. Moffett P, Moore G. The standard of care: legal history and definitions: the bad and good news. West J Emerg Med. 2011;12(1):109-112.
28. Svider PF, Husain Q, Kovalerchik O, et al. Determining legal responsibility in otolaryngology: a review of 44 trials since 2008. Am J Otolaryngol. 2013;34(6):699-705.
29. Svider PF, Sunaryo PL, Keeley BR, Kovalerchik O, Mauro AC, Eloy JA. Characterizing liability for cranial nerve injuries: a detailed analysis of 209 malpractice trials. Laryngoscope. 2013;123(5):1156-1162.
30. Svider PF, Keeley BR, Zumba O, Mauro AC, Setzen M, Eloy JA. From the operating room to the courtroom: a comprehensive characterization of litigation related to facial plastic surgery procedures. Laryngoscope. 2013;123(8):1849-1853.
31. Prabhu AV, Crihalmeanu T, Hansberry DR, et al. Online palliative care and oncology patient education resources through Google: do they meet national health literacy recommendations? Pract Radiat Oncol. 2017;7(5):306-310.
32. Prabhu AV, Hansberry DR, Agarwal N, Clump DA, Heron DE. Radiation oncology and online patient education materials: deviating from NIH and AMA recommendations. Int J Radiat Oncol Biol Phys. 2016;96(3):521-528.
33. Carroll AE, Buddenbaum JL. High and low-risk specialties experience with the U.S. medical malpractice system. BMC Health Serv Res. 2013;13:465.
34. Vidmar N. Juries and medical malpractice claims: empirical facts versus myths. Clin Orthop Relat Res. 2009;467(2):367-375.
35. Danzon PM. Medical Malpractice: Theory, Evidence, and Public Policy. Cambridge, MA: Harvard University Press; 1985.
36. Gordhan CG, Anandalwar SP, Son J, Ninan GK, Chokshi RJ. Malpractice in colorectal surgery: a review of 122 medicolegal cases. J Surg Res. 2015;199(2):351-356.
37. Code CC. Civil Code Section 3333.2. In: California So, ed1975.
38. Waters TM, Budetti PP, Claxton G, Lundy JP. Impact of state tort reforms on physician malpractice payments. Health Aff (Millwood). 2007;26(2):500-509.
39. Studdert DM, Yang YT, Mello MM. Are damages caps regressive? A study of malpractice jury verdicts in California. Health Aff (Millwood). 2004;23(4):54-67.
40. Aneja S, Smith BD, Gross CP, et al. Geographic analysis of the radiation oncology workforce. Int J Radiat Oncol Biol Phys. 2012;82(5):1723-1729.
41. ASTRO Workforce Committee. 2002 Radiation Oncology Workforce Study: American Society for Therapeutic Radiology and Oncology. Int J Radiat Oncol Biol Phys. 2003;56(2):309-318.
42. Fears D. Renewed effort to lure doctors to rural areas faces obstacles. Washington Post. http://www.was hingtonpost.com/wp-dyn/content/article/2010/08/08/AR2010080802832.html. Published August 9, 2010. Accessed January 11, 2018.
43. American Society for Radiation Oncology. RO-ILS. https://www.astro.org/RO-ILS.aspx. Accessed January 12, 2018.
44. Hoopes DJ, Dicker AP, Eads NL, et al. RO-ILS: Radiation Oncology Incident Learning System: a report from the first year of experience. Pract Radiat Oncol. 2015;5(5):312-318.
45. American Society for Radiation Oncology. APEx® Program Standards. Version 1.4. https://www.astro.org/uploaded Files/_MAIN_SITE/Daily_Practice/Accreditation/Content_Pieces/ProgramStandards.pdf. Updated February 1, 2016. Accessed January 12, 2018.
46. Svider PF, Kovalerchik O, Mauro AC, Baredes S, Eloy JA. Legal liability in iatrogenic orbital injury. Laryngoscope. 2013;123(9):2099-2103.
47. Nash JJ, Nash AG, Leach ME, Poetker DM. Medical malpractice and corticosteroid use. Otolaryngol Head Neck Surg. 2011;144(1):10-15.
48. Choudhry AJ, Haddad NN, Rivera M, et al. Medical malpractice in the management of small bowel obstruction: a 33-year review of case law. Surgery. 2016;160(4):1017-1027.
49. Ta JH, Liu YF, Krishna P. Medicolegal aspects of iatrogenic dysphonia and recurrent laryngeal nerve injury. Otolaryngol Head Neck Surg. 2016;154(1):80-86.
50. Engelhard SB, Collins M, Shah C, Sim AJ, Reddy AK. Malpractice litigation in pediatric ophthalmology. JAMA Ophthalmol. 2016;134(11):1230-1235.
51. Sunaryo PL, Svider PF, Jackson-Rosario I, Eloy JA. Expert witness testimony in urology malpractice litigation. Urology. 2014;83(4):704-708.
52. Rayess HM, Gupta A, Svider PF, et al. A critical analysis of melanoma malpractice litigation: should we biopsy everything? Laryngoscope. 2017;127(1):134-139.
53. Paik AM, Mady LJ, Sood A, Eloy JA, Lee ES. A look inside the courtroom: an analysis of 292 cosmetic breast surgery medical malpractice cases. Aesthet Surg J. 2014;34(1):79-86.
A rise in medical malpractice insurance premiums and malpractice claims has brought the issue of medical malpractice to the forefront of medicine over the past few decades.1 The VA has more than tripled the number of legal settlements it has made over the past 5 years, and it has paid more than $871 million in medical malpractice settlements over the past decade.2,3 Legislation by the federal and state governments in the U.S., collectively referred to as tort reform, has been passed to curb the rate at which malpractice claims are filed; to set caps on noneconomic damages, such as pain and suffering; to control the effect of these claims on insurance premiums; and to prevent the delivery of negligent and harmful medical care.1
An observed high prevalence of medical malpractice claims has significant consequences within the clinical setting and has given rise to the practice of defensive medicine.4-8 Even the perceived threat of possible tort action may lead to aberrant practice behaviors. These defensive medical practices may include excessive testing, unnecessary referrals to other physicians or health facilities, or even refusal to treat particular patients.4,9-11 Furthermore, physicians devote valuable time and energy engaging in lawsuits rather than in delivering quality care to their patients.12
The increasingly litigious environment has discouraged physicians from practicing medicine, leading to earlier retirement, geographic relocation, and restriction of scope of services, all limiting patients’ access to health care.13 One such figure reported in 2008 found that in the U.S., defensive medicine costs can total nearly $56 billion.14 Radiation oncology is generally considered a medium-to-low risk specialty for litigation.15,16 Its average annual indemnity payment in 2006 was $276,792 and has increased at a rate of $1,500 per year, ranking it fifth among 22 specialty groups.16 Studies revealed that the practice of defensive medicine is not strictly limited to the U.S. and has been reported in other countries.6,17-20,21
A recent study by Jena and colleagues found that nearly 10% of oncologists face a malpractice claim annually, the 10th highest among the specialties surveyed.22 Malpractice within the field of radiation oncology has been previously discussed in the literature.16,23,24 There are limited data that examine the basis for these claims, the resulting jury verdicts, and the subsequent indemnity payments associated with claims.24,25
In this study, the authors sought to describe radiation oncology malpractice claims over the past 30 years. It is hoped that this study will not only help traditional oncologists in particular, but also all other practitioners who might be included as co-defendants to be more aware of the common causes of action that plaintiffs have been using to sue.
Methods
This public and online study did not involve human subjects research and accordingly did not require institutional review board approval. The WestlawNext (Thomson Reuters, New York) online legal database was used to search retrospectively for state and federal jury verdicts and settlements related to radiation oncology and medical malpractice. The database is a collection of several thousand search engines that can locate court dockets, jury verdicts, and settlements compiled by attorney-editors. Local cases and claims that were dismissed prior to proceeding to trial or that were settled out of court were not available. All cases in the database were considered and provided this study’s sample size, spanning from January 1, 1985, to December 31, 2015.
Given the boolean search functionality integrated into the Westlaw database, search parameters included “radiation oncology” and “medical malpractice” to yield the greatest number of cases (n = 223). All derived cases were manually reviewed, and files that were duplicates or associated with litigation unrelated to radiation oncology were excluded from analysis (n = 191).
Analysis
Factors that were collected and considered included the state and county in which the claim was filed, the age and sex of the litigant at the time of malpractice, the year the case was settled, co-defendant specialties, jury verdicts, award payouts, death status of the litigant and the alleged basis for the medical malpractice claim. A lack of informed consent, a failure to treat in a timely manner, a failure to order appropriate tests or to make a timely referral, misinterpretation of a test, excessive radiation, unnecessary radiation, unnecessary surgery, and procedural error all were included as alleged bases for the malpractice claim. Descriptive statistics were then compiled.
Results
A total of 32 cases were included for analysis (Tables 1, 2, and 3). Anonymized summaries of all 32 cases are provided in the Appendix. The average age of the patient was 54.6 years (range 34-83) and included 17 (54.8%) female and 14 (45.2%) male patients.
Excessive radiation (n = 11, 34.4%), unnecessary radiation (n = 8, 25%), and a failure to refer and/or order appropriate tests (n = 9, 28.1%) were the 3 most commonly alleged causes of malpractice. A lack of informed consent was implicated in less than one-seventh of cases (4; 12.5%). In 7 (21.9%) cases, the patient passed away.
Between 1985 and 2015, decisions were made in radiation oncologists’ favor in more than half of the cases. The jury ruled for the plaintiff in 11 (34.4%) cases and for the defendant in 17 (53.1%) cases. Settlements were reached in 4 (12.5%) cases, with a mean payout of $1,476,775.
Discussion
A physician’s duty is to provide medical care within the standard of care. In the courtroom, a radiation oncologist is judged on what a “reasonably prudent” radiation oncologist would do in similar circumstances.26 The plaintiff must establish the standard of care for the patient’s specific diagnosis with evidence, which is often accomplished through expert testimony. A physician is deemed negligent when deviating from this standard of care. The plaintiff must establish 4 factors to be awarded compensation for medical negligence: (1) the physician owed a professional duty to the patient such as the doctor-patient relationship; (2) the physician breeched this duty or failed to meet the standard of care; (3) proximate cause—the breach of duty by the physician directly caused the patient’s injury; and (4) the patient experienced emotional and/or physical damage while in the care of the physician.27
Reasons for Malpractice Claims
The WestlawNext search revealed 3 top theories of breach of standard of care: excessive radiation, unnecessary radiation, and a failure to refer and/or order appropriate tests. As a result, these theories can be interpreted as medical malpractice law in evolution. In other words, the courts still may be laying groundwork to clarify these theories.
However, a more cynical interpretation of why these 3 top theories of breech of standard of care were seen would note the practice of using expert witness testimony as “hired guns” in the U.S. legal system. Plaintiff attorneys know that use of expert witnesses can increase the attorney’s billable hours during the discovery phase and can decrease the likelihood that the case would be thrown out as lacking merit. Nevertheless, when the claim eventually does go to trial, it may lack merit, but not before plaintiff and defense attorneys complete many hours of work. This use of the legal system for financial gains can potentially confound the true reasons why the search resulted in these 3 top theories of breach of standard of care.
A lack of informed consent was not a major issue and was cited only in 4 (12.5%) cases as the cause of alleged malpractice. This finding was reassuring, as informed consent is an important issue that reinforces the physician-patient relationship and enhances patient trust. Previous studies found a perceived lack of informed consent as a basis for a malpractice claim in more than 34% of otolaryngology cases,25% of cranial nerve surgery cases,and 39% of facial plastic surgery cases.28-30 Perhaps the physician patient discussion in radiation oncology may be different compared with that of surgery, as treatments in radiation oncology are guided by large clinical trials, and patients are often referred after discussions with other specialty providers, such as surgeons and medical oncologists. Improving patients’ understanding of their radiation treatment plans is important in reducing malpractice claims relating to informed consent, and recent studies have identified areas where patient education can be improved.31,32
Settlements
Although settlements were reached in a minority of cases, the monetary value of jury verdicts favoring the plaintiff were 3-fold higher than those of out-of-court settlements. Specifically, cases that were settled had a mean payout of $1,476,775, which sharply contrasts with cases that proceeded to trial and a mean payout of $4,744,219. The highest jury award to the plaintiff was $16,000,000, involving a case where it was determined that a double dose of radiation was delivered to a patient’s shoulder. In a simple risk-reward analysis, this suggests that radiation oncologists should consider settling out of court if a malpractice guilty verdict seems possible. However, given the retrospective nature of the analysis, only limited conclusions can be drawn regarding the effectiveness of such a strategy.
Regardless, cases that were settled or judged on the plaintiff’s behalf were for a much higher value in radiation oncology compared with indemnity payment claims data in other high-risk specialties (emergency medicine, general surgery, obstetrics and gynecologic surgery, and radiology).33 It is important to highlight the magnitude of real and perceived harm that can be associated with radiation oncology. Regarding perceived harm, the public may lack an understanding of how radiation works. Interestingly, even though the perceived harm may be misplaced, the real harm is still there. Unlike other specialties where some errors can be reversed (ie, if heparin is mistakenly administered, its effects can be reversed by protamine sulfate), once radiation is delivered, it is not reversible. The harm is permanent and can cause disability.
Settlements are often lower in legal cases due to insurance policy limitations, the time line of award payout (settlement funds are paid more rapidly, as verdict awards are dependent on the conclusion of the case), and the inherent risk that an appeals court may overturn a verdict or reduce the amount of the award.34 For all the radiation oncology cases that proceeded to trial, more than half (53.1%) of the cases were in favor of the physician (Table 3). While this is positive news for radiation oncologists, it is still lower than the national average of 75% of malpractice verdicts in favor o
Geographic Locations
The concentration of cases in a few states in this analysis is likely due to a combination of factors, including the distinct legal climates in individual states and the geographic unequal distribution of radiation oncologists across the country. For instance, California’s Medical Injury Compensation Reform Act of 1975 caps limited pain, suffering, inconvenience, physical impairment, disfigurement, and other noneconomic and nonmedical damages in malpractice to $250,000.37-39 Because of this cap, plaintiffs and their attorneys may be more hesitant to file a suit.
Radiation oncologists also remain concentrated in highly populated metropolitan health service areas, likely due to the attractiveness of academic centers, the large patient base required to sustain a practice, and the large capital investment needed to obtain the radiation equipment and staff resources to establish practices.40-42
Evolving Malpractice Theories
Zaorsky and colleagues used a similar methodology to this study.24 However, the distinction between this study and the Zaorsky study is that the latter attempted to use medical malpractice cases to draw conclusions on the validity and utility of quality assurance programs, specifically the Accreditation Program for Excellence (APEx) and the Radiation Oncology Incident Learning System (RO-ILS).43-45 The APEx/RO-ILS systems report only errors and faults, and medical malpractice is based on different sets of variables, such as legal theories, litigation procedures, plaintiff/defense zealousness, and the judicial system of inclusion and exclusion of cases in the docket. It is not possible to control for these confounding variables. This study, in contrast to the Zaorsky study, distills the essence of medical malpractice in radiation oncology and draws conclusions to advance the theories of recovery of monetary damage.
Limitations
The WestlawNext database is a comprehensive source for outcomes and details in malpractice litigation and draws from multiple legal sources, but there are limitations to acknowledge. This study is a retrospective analysis and is limited by the inherent bias associated with its design. As noted in previous studies,28,46 some jurisdictions may include only cases reported by attorneys on a voluntary basis with the purpose of predicting future outcomes and awards.47 Settlements may be underrepresented in this study. Out-of-court settlements often are not filed with state or federal courts and thus do not become part of the public record. The level of detail in jury verdicts in this database also is heterogeneous, and each case has different details and varying depths emphasized.
A better source of settlements and plaintiff verdict awards may be the National Practitioner Data Bank (NPDB), an electronic repository created by the U.S. Congress. It contains information on medical malpractice payments and certain adverse actions related to health care practitioners, entities, providers, and suppliers. However, the reports are confidential and not available to the public.
This study had a low number of cases (n = 32), but the information provided is impactful given there is a lack of access to a better source. For instance, insurance companies provide claims data, but the data have been criticized because insurers may be biased in determining which data to release. As discussed previously, the NPDB is not available for public review. Therefore, it is uncertain how many of the medical malpractice cases the WestlawNext database captures.
Based on the discussion with multiple medical malpractice lawyers practicing in various jurisdictions across the country and law school reference librarians, there is a concurrence that about 70% to 90% of claims are not taken on by plaintiff attorneys because of lack of merit or for procedural legal reasons, such as when there is no standing or when the statute of limitations has expired. Of the 10% to 30% claims that proceed to trial, about 90% result in a confidential settlement. Moreover, the court can render an order or an opinion. If it is an order, the case is never recorded. If it is an opinion, the case still may not be included in the WestlawNext database. Only cases that are on appeal, with controversy, proceed through the state and federal appellate system; judges still can decide whether to publish the results from these cases. Depending on jurisdiction, these factors result in 20% to 92% of opinions not being published for any given year. However, opinions that are marked for publishing should be included in the WestlawNext database with negligible omissions and errors. The percentage of published cases in WestlawNext database of all claims could very well be only 1% to 5%.
Nevertheless, the WestlawNext database covers a large geographic area and is a comprehensive source of litigation information. The authors selected WestlawNext over other online legal databases (ie, Bloomberg Law, LexisNexis, VerdictSearch) due to its reputation, quality of case entries, and ease of navigation. WestlawNext is well known among lawyers and legal professions, and it has been validated through previous studies in other medical fields such as general surgery and its subspecialties,36,48 otolaryngology,28,46,47,49 ophthalmology,50 urology,51 dermatology,52 and plastic surgery.53
Conclusion
Litigation involving radiation oncologists were infrequent, and most verdicts were in favor of defendant radiation oncologists. Excessive radiation, unnecessary radiation, and a failure to refer and/or order appropriate tests were noted in most cases. Settlements were reached in the minority of cases, although mean payouts were more than 3 times less in these cases compared with jury verdicts. An increased awareness of radiation oncology malpractice litigation has the potential to improve physician-patient relationships and provide insight into the situations and conditions that commonly lead to litigation within the radiation oncology field.
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A rise in medical malpractice insurance premiums and malpractice claims has brought the issue of medical malpractice to the forefront of medicine over the past few decades.1 The VA has more than tripled the number of legal settlements it has made over the past 5 years, and it has paid more than $871 million in medical malpractice settlements over the past decade.2,3 Legislation by the federal and state governments in the U.S., collectively referred to as tort reform, has been passed to curb the rate at which malpractice claims are filed; to set caps on noneconomic damages, such as pain and suffering; to control the effect of these claims on insurance premiums; and to prevent the delivery of negligent and harmful medical care.1
An observed high prevalence of medical malpractice claims has significant consequences within the clinical setting and has given rise to the practice of defensive medicine.4-8 Even the perceived threat of possible tort action may lead to aberrant practice behaviors. These defensive medical practices may include excessive testing, unnecessary referrals to other physicians or health facilities, or even refusal to treat particular patients.4,9-11 Furthermore, physicians devote valuable time and energy engaging in lawsuits rather than in delivering quality care to their patients.12
The increasingly litigious environment has discouraged physicians from practicing medicine, leading to earlier retirement, geographic relocation, and restriction of scope of services, all limiting patients’ access to health care.13 One such figure reported in 2008 found that in the U.S., defensive medicine costs can total nearly $56 billion.14 Radiation oncology is generally considered a medium-to-low risk specialty for litigation.15,16 Its average annual indemnity payment in 2006 was $276,792 and has increased at a rate of $1,500 per year, ranking it fifth among 22 specialty groups.16 Studies revealed that the practice of defensive medicine is not strictly limited to the U.S. and has been reported in other countries.6,17-20,21
A recent study by Jena and colleagues found that nearly 10% of oncologists face a malpractice claim annually, the 10th highest among the specialties surveyed.22 Malpractice within the field of radiation oncology has been previously discussed in the literature.16,23,24 There are limited data that examine the basis for these claims, the resulting jury verdicts, and the subsequent indemnity payments associated with claims.24,25
In this study, the authors sought to describe radiation oncology malpractice claims over the past 30 years. It is hoped that this study will not only help traditional oncologists in particular, but also all other practitioners who might be included as co-defendants to be more aware of the common causes of action that plaintiffs have been using to sue.
Methods
This public and online study did not involve human subjects research and accordingly did not require institutional review board approval. The WestlawNext (Thomson Reuters, New York) online legal database was used to search retrospectively for state and federal jury verdicts and settlements related to radiation oncology and medical malpractice. The database is a collection of several thousand search engines that can locate court dockets, jury verdicts, and settlements compiled by attorney-editors. Local cases and claims that were dismissed prior to proceeding to trial or that were settled out of court were not available. All cases in the database were considered and provided this study’s sample size, spanning from January 1, 1985, to December 31, 2015.
Given the boolean search functionality integrated into the Westlaw database, search parameters included “radiation oncology” and “medical malpractice” to yield the greatest number of cases (n = 223). All derived cases were manually reviewed, and files that were duplicates or associated with litigation unrelated to radiation oncology were excluded from analysis (n = 191).
Analysis
Factors that were collected and considered included the state and county in which the claim was filed, the age and sex of the litigant at the time of malpractice, the year the case was settled, co-defendant specialties, jury verdicts, award payouts, death status of the litigant and the alleged basis for the medical malpractice claim. A lack of informed consent, a failure to treat in a timely manner, a failure to order appropriate tests or to make a timely referral, misinterpretation of a test, excessive radiation, unnecessary radiation, unnecessary surgery, and procedural error all were included as alleged bases for the malpractice claim. Descriptive statistics were then compiled.
Results
A total of 32 cases were included for analysis (Tables 1, 2, and 3). Anonymized summaries of all 32 cases are provided in the Appendix. The average age of the patient was 54.6 years (range 34-83) and included 17 (54.8%) female and 14 (45.2%) male patients.
Excessive radiation (n = 11, 34.4%), unnecessary radiation (n = 8, 25%), and a failure to refer and/or order appropriate tests (n = 9, 28.1%) were the 3 most commonly alleged causes of malpractice. A lack of informed consent was implicated in less than one-seventh of cases (4; 12.5%). In 7 (21.9%) cases, the patient passed away.
Between 1985 and 2015, decisions were made in radiation oncologists’ favor in more than half of the cases. The jury ruled for the plaintiff in 11 (34.4%) cases and for the defendant in 17 (53.1%) cases. Settlements were reached in 4 (12.5%) cases, with a mean payout of $1,476,775.
Discussion
A physician’s duty is to provide medical care within the standard of care. In the courtroom, a radiation oncologist is judged on what a “reasonably prudent” radiation oncologist would do in similar circumstances.26 The plaintiff must establish the standard of care for the patient’s specific diagnosis with evidence, which is often accomplished through expert testimony. A physician is deemed negligent when deviating from this standard of care. The plaintiff must establish 4 factors to be awarded compensation for medical negligence: (1) the physician owed a professional duty to the patient such as the doctor-patient relationship; (2) the physician breeched this duty or failed to meet the standard of care; (3) proximate cause—the breach of duty by the physician directly caused the patient’s injury; and (4) the patient experienced emotional and/or physical damage while in the care of the physician.27
Reasons for Malpractice Claims
The WestlawNext search revealed 3 top theories of breach of standard of care: excessive radiation, unnecessary radiation, and a failure to refer and/or order appropriate tests. As a result, these theories can be interpreted as medical malpractice law in evolution. In other words, the courts still may be laying groundwork to clarify these theories.
However, a more cynical interpretation of why these 3 top theories of breech of standard of care were seen would note the practice of using expert witness testimony as “hired guns” in the U.S. legal system. Plaintiff attorneys know that use of expert witnesses can increase the attorney’s billable hours during the discovery phase and can decrease the likelihood that the case would be thrown out as lacking merit. Nevertheless, when the claim eventually does go to trial, it may lack merit, but not before plaintiff and defense attorneys complete many hours of work. This use of the legal system for financial gains can potentially confound the true reasons why the search resulted in these 3 top theories of breach of standard of care.
A lack of informed consent was not a major issue and was cited only in 4 (12.5%) cases as the cause of alleged malpractice. This finding was reassuring, as informed consent is an important issue that reinforces the physician-patient relationship and enhances patient trust. Previous studies found a perceived lack of informed consent as a basis for a malpractice claim in more than 34% of otolaryngology cases,25% of cranial nerve surgery cases,and 39% of facial plastic surgery cases.28-30 Perhaps the physician patient discussion in radiation oncology may be different compared with that of surgery, as treatments in radiation oncology are guided by large clinical trials, and patients are often referred after discussions with other specialty providers, such as surgeons and medical oncologists. Improving patients’ understanding of their radiation treatment plans is important in reducing malpractice claims relating to informed consent, and recent studies have identified areas where patient education can be improved.31,32
Settlements
Although settlements were reached in a minority of cases, the monetary value of jury verdicts favoring the plaintiff were 3-fold higher than those of out-of-court settlements. Specifically, cases that were settled had a mean payout of $1,476,775, which sharply contrasts with cases that proceeded to trial and a mean payout of $4,744,219. The highest jury award to the plaintiff was $16,000,000, involving a case where it was determined that a double dose of radiation was delivered to a patient’s shoulder. In a simple risk-reward analysis, this suggests that radiation oncologists should consider settling out of court if a malpractice guilty verdict seems possible. However, given the retrospective nature of the analysis, only limited conclusions can be drawn regarding the effectiveness of such a strategy.
Regardless, cases that were settled or judged on the plaintiff’s behalf were for a much higher value in radiation oncology compared with indemnity payment claims data in other high-risk specialties (emergency medicine, general surgery, obstetrics and gynecologic surgery, and radiology).33 It is important to highlight the magnitude of real and perceived harm that can be associated with radiation oncology. Regarding perceived harm, the public may lack an understanding of how radiation works. Interestingly, even though the perceived harm may be misplaced, the real harm is still there. Unlike other specialties where some errors can be reversed (ie, if heparin is mistakenly administered, its effects can be reversed by protamine sulfate), once radiation is delivered, it is not reversible. The harm is permanent and can cause disability.
Settlements are often lower in legal cases due to insurance policy limitations, the time line of award payout (settlement funds are paid more rapidly, as verdict awards are dependent on the conclusion of the case), and the inherent risk that an appeals court may overturn a verdict or reduce the amount of the award.34 For all the radiation oncology cases that proceeded to trial, more than half (53.1%) of the cases were in favor of the physician (Table 3). While this is positive news for radiation oncologists, it is still lower than the national average of 75% of malpractice verdicts in favor o
Geographic Locations
The concentration of cases in a few states in this analysis is likely due to a combination of factors, including the distinct legal climates in individual states and the geographic unequal distribution of radiation oncologists across the country. For instance, California’s Medical Injury Compensation Reform Act of 1975 caps limited pain, suffering, inconvenience, physical impairment, disfigurement, and other noneconomic and nonmedical damages in malpractice to $250,000.37-39 Because of this cap, plaintiffs and their attorneys may be more hesitant to file a suit.
Radiation oncologists also remain concentrated in highly populated metropolitan health service areas, likely due to the attractiveness of academic centers, the large patient base required to sustain a practice, and the large capital investment needed to obtain the radiation equipment and staff resources to establish practices.40-42
Evolving Malpractice Theories
Zaorsky and colleagues used a similar methodology to this study.24 However, the distinction between this study and the Zaorsky study is that the latter attempted to use medical malpractice cases to draw conclusions on the validity and utility of quality assurance programs, specifically the Accreditation Program for Excellence (APEx) and the Radiation Oncology Incident Learning System (RO-ILS).43-45 The APEx/RO-ILS systems report only errors and faults, and medical malpractice is based on different sets of variables, such as legal theories, litigation procedures, plaintiff/defense zealousness, and the judicial system of inclusion and exclusion of cases in the docket. It is not possible to control for these confounding variables. This study, in contrast to the Zaorsky study, distills the essence of medical malpractice in radiation oncology and draws conclusions to advance the theories of recovery of monetary damage.
Limitations
The WestlawNext database is a comprehensive source for outcomes and details in malpractice litigation and draws from multiple legal sources, but there are limitations to acknowledge. This study is a retrospective analysis and is limited by the inherent bias associated with its design. As noted in previous studies,28,46 some jurisdictions may include only cases reported by attorneys on a voluntary basis with the purpose of predicting future outcomes and awards.47 Settlements may be underrepresented in this study. Out-of-court settlements often are not filed with state or federal courts and thus do not become part of the public record. The level of detail in jury verdicts in this database also is heterogeneous, and each case has different details and varying depths emphasized.
A better source of settlements and plaintiff verdict awards may be the National Practitioner Data Bank (NPDB), an electronic repository created by the U.S. Congress. It contains information on medical malpractice payments and certain adverse actions related to health care practitioners, entities, providers, and suppliers. However, the reports are confidential and not available to the public.
This study had a low number of cases (n = 32), but the information provided is impactful given there is a lack of access to a better source. For instance, insurance companies provide claims data, but the data have been criticized because insurers may be biased in determining which data to release. As discussed previously, the NPDB is not available for public review. Therefore, it is uncertain how many of the medical malpractice cases the WestlawNext database captures.
Based on the discussion with multiple medical malpractice lawyers practicing in various jurisdictions across the country and law school reference librarians, there is a concurrence that about 70% to 90% of claims are not taken on by plaintiff attorneys because of lack of merit or for procedural legal reasons, such as when there is no standing or when the statute of limitations has expired. Of the 10% to 30% claims that proceed to trial, about 90% result in a confidential settlement. Moreover, the court can render an order or an opinion. If it is an order, the case is never recorded. If it is an opinion, the case still may not be included in the WestlawNext database. Only cases that are on appeal, with controversy, proceed through the state and federal appellate system; judges still can decide whether to publish the results from these cases. Depending on jurisdiction, these factors result in 20% to 92% of opinions not being published for any given year. However, opinions that are marked for publishing should be included in the WestlawNext database with negligible omissions and errors. The percentage of published cases in WestlawNext database of all claims could very well be only 1% to 5%.
Nevertheless, the WestlawNext database covers a large geographic area and is a comprehensive source of litigation information. The authors selected WestlawNext over other online legal databases (ie, Bloomberg Law, LexisNexis, VerdictSearch) due to its reputation, quality of case entries, and ease of navigation. WestlawNext is well known among lawyers and legal professions, and it has been validated through previous studies in other medical fields such as general surgery and its subspecialties,36,48 otolaryngology,28,46,47,49 ophthalmology,50 urology,51 dermatology,52 and plastic surgery.53
Conclusion
Litigation involving radiation oncologists were infrequent, and most verdicts were in favor of defendant radiation oncologists. Excessive radiation, unnecessary radiation, and a failure to refer and/or order appropriate tests were noted in most cases. Settlements were reached in the minority of cases, although mean payouts were more than 3 times less in these cases compared with jury verdicts. An increased awareness of radiation oncology malpractice litigation has the potential to improve physician-patient relationships and provide insight into the situations and conditions that commonly lead to litigation within the radiation oncology field.
Click here to read the digital edition.
1. Mello MM, Studdert DM, Brennan TA. The new medical malpractice crisis. N Engl J Med. 2003;348(23):2281-2284.
2. Howard C, Blau R. Exclusive: legal settlements at Veterans Affairs more than tripled since 2011, many due to medical malpractices. http://www.nydailynews.com/amp /news/national/legal-settlements-veterans-affairs-triple -article-1.2654179. Published May 30, 2016. Accessed January 10, 2018.
3. Rosiak L. VA paid $871M in medical malpractice deals in past decade. http://amp.dailycaller.com/2015/12/17/va-has-paid-230m-in-medical-malpractice-settlements. Published December 17, 2015. Accessed January 11, 2018.
4. Studdert DM, Mello MM, Sage WM, et al. Defensive medicine among high-risk specialist physicians in a volatile malpractice environment. JAMA. 2005;293(21):2609-2617.
5. Bishop TF, Federman AD, Keyhani S. Physicians’ views on defensive medicine: a national survey. Arch Intern Med. 2010;170(12):1081-1083.
6. Carrier ER, Reschovsky JD, Mello MM, Mayrell RC, Katz D. Physicians’ fears of malpractice lawsuits are not assuaged by tort reforms. Health Aff (Millwood). 2010;29(9):1585-1592.
7. Hermer LD, Brody H. Defensive medicine, cost containment, and reform. J Gen Intern Med. 2010;25(5):470-473.
8. Rothberg MB, Class J, Bishop TF, Friderici J, Kleppel R, Lindenauer PK. The cost of defensive medicine on 3 hospital medicine services. JAMA Intern Med. 2014;174(11):1867-1868.
9. Martello J. Basic medical legal principles. Clin Plast Surg. 1999;26(1):9-14, v.
10. Kessler DP. Evaluating the medical malpractice system and options for reform. J Econ Perspect. 2011;25(2):93-110.
11. Rosenblatt RA, Detering B. Changing patterns of obstetric practice in Washington State: the impact of tort reform. Fam Med. 1988;20(2):101-107.
12. Seabury SA, Chandra A, Lakdawalla DN, Jena AB. On average, physicians spend nearly 11 percent of their 40-year careers with an open, unresolved malpractice claim. Health Aff (Millwood). 2013;32(1):111-119.
13. Mello MM, Williams CH. Medical malpractice: impact of the crisis and effect of state tort reforms. Research Synthesis Report No. 10. Princeton, NJ: The Robert Wood Johnson Foundation; 2006.
14. Mello MM, Chandra A, Gawande AA, Studdert DM. National costs of the medical liability system. Health Aff (Millwood). 2010;29(9):1569-1577.
15. Ramella S, Mandoliti G, Trodella L, D’Angelillo RM. The first survey on defensive medicine in radiation oncology. Radiol Med. 2015;120(5):421-429.
16. Marshall DC, Punglia RS, Fox D, Recht A, Hattangadi-Gluth JA. Medical malpractice claims in radiation oncology: a population-based study 1985-2012. Int J Radiat Oncol Biol Phys. 2015;93(2):241-250.
17. Baicker K, Fisher ES, Chandra A. Malpractice liability costs and the practice of medicine in the medicare program. Health Aff (Millwood). 2007;26(3):841-852.
18. Kessler DP, McClellan MB. How liability law affects medical productivity. J Health Econ. 2002;21(6):931-955.
19. Dubay L, Kaestner R, Waidmann T. The impact of malpractice fears on cesarean section rates. J Health Econ. 1999;18(4):491-522.
20. Lakdawalla DN, Seabury SA. The welfare effects of medical malpractice liability. Int Rev Law Econ. 2012;32(4):356-369.
21. Ortashi O, Virdee J, Hassan R, Mutrynowski T, Abu-Zidan F. The practice of defensive medicine among hospital doctors in the United Kingdom. BMC Med Ethics. 2013;14(1):42.
22. Jena AB, Seabury S, Lakdawalla D, Chandra A. Malpractice risk according to physician specialty. N Engl J Med. 2011;365(7):629-636.
23. Marshall D, Tringale K, Connor M, Punglia R, Recht A, Hattangadi-Gluth J. Nature of medical malpractice claims against radiation oncologists. Int J Radiat Oncol Biol Phys. 2017;98(1):21-30.
24. Zaorsky NG, Ricco AG, Churilla TM, Horwitz EM, Den RB. ASTRO APEx® and RO-ILS™ are applicable to medical malpractice in radiation oncology. Future Oncol. 2016;12(22):2643-2657.
25. Hattangadi J, Murphy J, Sanghvi P, Recht A, Punglia RS. A 25-year epidemiologic study of medical malpractice claims in radiation oncology. Int J Radiat Oncol Biol Phys. 2014;90(1)(suppl 9):S749.
26. Necessary elements of proof that injury resulted from failure to follow accepted standard of care. Washington State Legislature. Revised Code of Washington 7.70.040. 2011.
27. Moffett P, Moore G. The standard of care: legal history and definitions: the bad and good news. West J Emerg Med. 2011;12(1):109-112.
28. Svider PF, Husain Q, Kovalerchik O, et al. Determining legal responsibility in otolaryngology: a review of 44 trials since 2008. Am J Otolaryngol. 2013;34(6):699-705.
29. Svider PF, Sunaryo PL, Keeley BR, Kovalerchik O, Mauro AC, Eloy JA. Characterizing liability for cranial nerve injuries: a detailed analysis of 209 malpractice trials. Laryngoscope. 2013;123(5):1156-1162.
30. Svider PF, Keeley BR, Zumba O, Mauro AC, Setzen M, Eloy JA. From the operating room to the courtroom: a comprehensive characterization of litigation related to facial plastic surgery procedures. Laryngoscope. 2013;123(8):1849-1853.
31. Prabhu AV, Crihalmeanu T, Hansberry DR, et al. Online palliative care and oncology patient education resources through Google: do they meet national health literacy recommendations? Pract Radiat Oncol. 2017;7(5):306-310.
32. Prabhu AV, Hansberry DR, Agarwal N, Clump DA, Heron DE. Radiation oncology and online patient education materials: deviating from NIH and AMA recommendations. Int J Radiat Oncol Biol Phys. 2016;96(3):521-528.
33. Carroll AE, Buddenbaum JL. High and low-risk specialties experience with the U.S. medical malpractice system. BMC Health Serv Res. 2013;13:465.
34. Vidmar N. Juries and medical malpractice claims: empirical facts versus myths. Clin Orthop Relat Res. 2009;467(2):367-375.
35. Danzon PM. Medical Malpractice: Theory, Evidence, and Public Policy. Cambridge, MA: Harvard University Press; 1985.
36. Gordhan CG, Anandalwar SP, Son J, Ninan GK, Chokshi RJ. Malpractice in colorectal surgery: a review of 122 medicolegal cases. J Surg Res. 2015;199(2):351-356.
37. Code CC. Civil Code Section 3333.2. In: California So, ed1975.
38. Waters TM, Budetti PP, Claxton G, Lundy JP. Impact of state tort reforms on physician malpractice payments. Health Aff (Millwood). 2007;26(2):500-509.
39. Studdert DM, Yang YT, Mello MM. Are damages caps regressive? A study of malpractice jury verdicts in California. Health Aff (Millwood). 2004;23(4):54-67.
40. Aneja S, Smith BD, Gross CP, et al. Geographic analysis of the radiation oncology workforce. Int J Radiat Oncol Biol Phys. 2012;82(5):1723-1729.
41. ASTRO Workforce Committee. 2002 Radiation Oncology Workforce Study: American Society for Therapeutic Radiology and Oncology. Int J Radiat Oncol Biol Phys. 2003;56(2):309-318.
42. Fears D. Renewed effort to lure doctors to rural areas faces obstacles. Washington Post. http://www.was hingtonpost.com/wp-dyn/content/article/2010/08/08/AR2010080802832.html. Published August 9, 2010. Accessed January 11, 2018.
43. American Society for Radiation Oncology. RO-ILS. https://www.astro.org/RO-ILS.aspx. Accessed January 12, 2018.
44. Hoopes DJ, Dicker AP, Eads NL, et al. RO-ILS: Radiation Oncology Incident Learning System: a report from the first year of experience. Pract Radiat Oncol. 2015;5(5):312-318.
45. American Society for Radiation Oncology. APEx® Program Standards. Version 1.4. https://www.astro.org/uploaded Files/_MAIN_SITE/Daily_Practice/Accreditation/Content_Pieces/ProgramStandards.pdf. Updated February 1, 2016. Accessed January 12, 2018.
46. Svider PF, Kovalerchik O, Mauro AC, Baredes S, Eloy JA. Legal liability in iatrogenic orbital injury. Laryngoscope. 2013;123(9):2099-2103.
47. Nash JJ, Nash AG, Leach ME, Poetker DM. Medical malpractice and corticosteroid use. Otolaryngol Head Neck Surg. 2011;144(1):10-15.
48. Choudhry AJ, Haddad NN, Rivera M, et al. Medical malpractice in the management of small bowel obstruction: a 33-year review of case law. Surgery. 2016;160(4):1017-1027.
49. Ta JH, Liu YF, Krishna P. Medicolegal aspects of iatrogenic dysphonia and recurrent laryngeal nerve injury. Otolaryngol Head Neck Surg. 2016;154(1):80-86.
50. Engelhard SB, Collins M, Shah C, Sim AJ, Reddy AK. Malpractice litigation in pediatric ophthalmology. JAMA Ophthalmol. 2016;134(11):1230-1235.
51. Sunaryo PL, Svider PF, Jackson-Rosario I, Eloy JA. Expert witness testimony in urology malpractice litigation. Urology. 2014;83(4):704-708.
52. Rayess HM, Gupta A, Svider PF, et al. A critical analysis of melanoma malpractice litigation: should we biopsy everything? Laryngoscope. 2017;127(1):134-139.
53. Paik AM, Mady LJ, Sood A, Eloy JA, Lee ES. A look inside the courtroom: an analysis of 292 cosmetic breast surgery medical malpractice cases. Aesthet Surg J. 2014;34(1):79-86.
1. Mello MM, Studdert DM, Brennan TA. The new medical malpractice crisis. N Engl J Med. 2003;348(23):2281-2284.
2. Howard C, Blau R. Exclusive: legal settlements at Veterans Affairs more than tripled since 2011, many due to medical malpractices. http://www.nydailynews.com/amp /news/national/legal-settlements-veterans-affairs-triple -article-1.2654179. Published May 30, 2016. Accessed January 10, 2018.
3. Rosiak L. VA paid $871M in medical malpractice deals in past decade. http://amp.dailycaller.com/2015/12/17/va-has-paid-230m-in-medical-malpractice-settlements. Published December 17, 2015. Accessed January 11, 2018.
4. Studdert DM, Mello MM, Sage WM, et al. Defensive medicine among high-risk specialist physicians in a volatile malpractice environment. JAMA. 2005;293(21):2609-2617.
5. Bishop TF, Federman AD, Keyhani S. Physicians’ views on defensive medicine: a national survey. Arch Intern Med. 2010;170(12):1081-1083.
6. Carrier ER, Reschovsky JD, Mello MM, Mayrell RC, Katz D. Physicians’ fears of malpractice lawsuits are not assuaged by tort reforms. Health Aff (Millwood). 2010;29(9):1585-1592.
7. Hermer LD, Brody H. Defensive medicine, cost containment, and reform. J Gen Intern Med. 2010;25(5):470-473.
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