Overruled: Fear of litigation unfounded for physicians recommending active surveillance
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Key takeaways:
- Some clinicians fear litigation if they promote active surveillance.
- Analysis found more lawsuits from patients upset they did not get offered active surveillance than those who sued for being treated with it.
Allen S. Ho, MD, did not wait to promote active surveillance when he started practicing medicine a decade ago.
He trained in a cancer center that encouraged it, and he wanted to do the same, despite warnings from peers.
“I was advised there was some risk that it would jeopardize my practice, my career,” the director of the head and neck cancer program and co-director of the thyroid cancer program at Cedars-Sinai told Healio. “If a patient sees that you’re advocating against surgery, they may wonder about your surgical ability or surgical prowess.”
Ho has found the opposite to be true.
“Many patients are even more enamored and trusting of a surgeon who doesn’t feel like everything needs to have an operation,” he said.
Active surveillance has gradually become more accepted over the past 10 years in treating multiple cancer types, including prostate, kidney and thyroid cancers and lymphoma. It has produced equivalent results to surgery for certain patients, Ho said.
However, many clinicians still do not recommend it for a variety of reasons, including fear of litigation.
Ho and colleagues investigated whether that concern had basis and discovered no evidence that treating patients with active surveillance resulted in malpractice lawsuits, according to findings published in Annals of Surgery.
“The actual act of being sued, even if you’re vindicated, is, emotionally, extremely draining for physicians,” Ho said. “But we didn’t see any verdicts, and we didn’t see any suits except for a bizarre one involving prisoners. It was an excuse, and now, after the paper has come out, it’s a lame excuse.”
‘We need to offer this option’
Researchers used the Westlaw Edge and LexisNexis Advance legal databases, which include case opinions from all federal courts and every state, to find any trials involving medical malpractice and active surveillance between Jan. 1, 1990, and July 7, 2023.
They discovered five, all of them related to prostate cancer.
Of those, just two involved patients alleging “deliberate indifference” to their care, researchers wrote, but both of those individuals were incarcerated. Courts ruled active surveillance had been done in “accordance with national standards.”
Conversely, the other three cases involved patients suing because active surveillance had not been offered as an option, although the courts ultimately ruled it had.
“That actually further bolsters our argument that we need to offer this option to patients, because if you don’t offer it and something goes wrong, patients have the freedom to sue you,” Ho said.
Increased use of active surveillance will require patience, however, as several barriers exist.
“There is a disconnect between the medical literature and clinical practice,” Ho said. “Papers that promote active surveillance, advocate for it, say that it’s safe, but sometimes whatever is true in the literature is not what people conduct in practice.”
Changing perceptions
Patients have concerns with active surveillance.
“The term ‘cancer’ stokes a lot of anxiety, distress and fear,” Ho said.
“There are plenty of surveys ... that show there’s a disproportionate amount of fear with the word ‘cancer.’ And cancer is, by itself, unpredictable,” he added. “There's always a chance it could return, and I think it puts people on edge. Many of my patients, even if I tell them that this is the one of the lowest-risk cancers and it is extremely unlikely that it will be lethal, will come back if they’re the very anxious type and say, ‘I want to be there for my kids.’ I just told them that their survival exceeds 99%.”
Clinicians can have those same worries.
“Physicians are people,” Ho said. “Physicians feel more secure that they’re doing a tangible intervention, a procedure, a surgery, something that puts a stamp on it, something has been done. If it fails, or if it’s better, or if it’s worse, there is some satisfaction with being able to state that we performed an intervention.”
There are also financial incentives to performing operations, and patients’ family members can also sway them away from active surveillance.
Increasing awareness of active surveillance, and its framing, could drastically change perceptions about it.
“With a cancer, people want to do an intervention,” Ho said. “But if it’s a low-risk cancer such as most thyroid cancers and prostate cancers, you could frame it as something that is like a medical condition that you live with, such as high blood pressure, diabetes, high cholesterol. We give medication, we do scans, we do lab work and we treat a chronic disease, but no one would ever say that we’re doing an intervention on a patient’s blood pressure.
“If you talk to the specialists who treat lymphoma with active surveillance, they don’t call it active surveillance. It’s just observation to them,” he continued. “That occurs in approximately 90% of certain lymphomas, such as chronic lymphocytic leukemia. It’s something [they have] been practicing for decades. It’s something we accept because, for lymphoma, [physicians] understand that the treatment is worse than the disease.”
Prostate cancer specialists have promoted active surveillance more frequently the last several years due to possible adverse events associated with surgery, such as incontinence or impotence.
It has been less used in thyroid cancer due to fewer pronounced adverse events.
“The thyroid field is about 20 to 25 years behind prostate,” Ho said.
He stressed the need for more studies to help narrow the gap, adding that prostate cancer research has identified various ways to identify a malignancy, including MRIs and molecular testing, whereas detecting thyroid cancer comes down to tracking a tumor’s size.
Additionally, other studies need time to mature to show the effectiveness of active surveillance in long-term follow-up.
Until those happen, however, increasing use of active surveillance may be a time-consuming exercise.
“[It] might take an hour and a half to convince [a patient] that active surveillance is a good choice,” Ho said.
“Then ... if they go to another office, it might take all of 10 minutes for a surgeon to convince them that surgery makes sense,” he added. “It’s laborious and time intensive. But if we are able to create some kind of decision aid or have some other scans or blood work that can reassure people that this is an ultra-low risk, probably never going to hurt you, disease, we’d be able to better persuade them. Once you remove the time element, the laborious element, and you can clearly put them on even footing, I think many more people will start coming on board to active surveillance.”
For more information:
Allen S. Ho, MD, can be reached at allen.ho@cshs.org.
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