I have been actively engaged in the clinical practice of Radiation Oncology for the last 40 years, and over the last 10 years have been asked to participate in a variety of medical malpractice cases. Radiation therapy, together with surgery and chemotherapy, is one of the major cancer treatment methods. It is estimated that 50-60% of all cancer patients seen in the USA receive treatment with radiation at some point in their disease trajectory. For 2012, the American Cancer Society estimates 1.6 million new cases of cancer, so that we are speaking of upwards of 800,000 plus patients.
Like surgery and chemotherapy, radiation can be beneficial; but it also has the potential to be harmful or at least hazardous when misapplied. When receiving a case where radiation injury is alleged, it is my practice to quantify the level of radiation exposure and make a judgment whether that dose could be responsible for the injury. Today’s sophisticated computer-driven technology allows us to quantify radiation dose at any level or CAT scan slice in the treated area. We often ask a medical physicist to aid us in quantifying the radiation doses, just as we do in the clinical setting.
In my experience, litigation can be initiated by a plaintiff for failure to diagnose cancer in a timely fashion, which brings up the “loss of chance” determination. In this type of case, the radiation oncologist is functioning merely as an oncologist. As mentioned above, often there is an allegation of radiation injury from misapplication, overlapping fields, poor technique, or the inappropriate use of radiation therapy (RT). However, litigants must avoid the pitfall of the RT syllogism:
First premise: The patient has pneumonitis.
Second premise: The patient received radiation.
(False) conclusion: The patient suffers from radiation pneumonitis.
Sometimes, we are asked to serve as a resource in a defense case. Again, I rely on quantification to resolve these cases. If the radiation dose is too high, and is in the range to cause injury, the case is difficult to defend. Conversely, if the doses are appropriate, it is difficult to allege departure from the standard of care.
When gathering medical records to send to the consultant radiation oncologist, attorneys should be aware that a separate record or chart can be found in the Radiation Oncology department. The details of how the patient was treated such as dosimetry, isodose contours, and calculations will NOT be found in the hospital chart; only in the RT chart. Diagnostic studies and reports can be obtained from the hospital Radiology department, but X-ray studies which originate in the Department of Radiation Oncology (DRO) must be requested from the DRO. Almost all patients who receive RT have departmental imaging that show the areas treated, and “portal films” that confirm that the fields set up at the time of simulation are exactly the fields that are treated.
Some radiation injury is to be expected and may be temporary. When treating tongue cancer, for example, there may be soreness in the mouth and throat that heals by 1 month after the end of treatment. Loss of taste, however, may take 6 months to recover. Reduction in salivary flow may be permanent. It is the responsibility of the treating physician to discuss these matters with the patient and his/her caregiver before RT begins.
Lastly, I should point out that a lot of cancer treatment today is multidisciplinary, i.e. surgery, radiation and chemotherapy may all be sued to treat a patient. A skilled radiation oncologist may be able to identify whether the injury is truly from radiation or perhaps it is from one of the other modalities. Or perhaps, it arises from an underlying condition such as diabetes mellitus or a collagen vascular disease such as lupus.
All in all, medical malpractice work has been interesting, challenging, and rewarding. It has taught me a great deal about my specialty. I look forward to continued involvement in this area.