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I would like to expand on the excellent article by Patricia Legant, MD, “Oncologists and Medical Malpractice.”1 Regarding informed consent issues (“Potential Areas of Litigation,” point 4),1 there is wide variation in practice on what is appropriate and necessary. As an example, we reported on the wide variation of informing patients on the leukemogenic potential of chemotherapy drugs.2 With that said, I believe that ASCO should provide on its Web site consent for chemotherapy narratives, not just patient information materials, but actual consent documents for patients to sign. The current situation seems to be that each practice needs to “re-invent the wheel.”
I note Dr Legant's choice of words that physicians should “make an effort” and “mention” to patients possible events such as infertility, death, and late second malignancies. I thought the word choices were curious, and I wonder if the author herself is ambivalent. Dr Legant wisely goes on to elaborate some of the difficulties involved in the interactions of patients and families under enormous stress in discussing these issues. The ambiguous language may reflect the mixed emotions that are shared by many practitioners, which is why my own findings of how physicians handle this type of issue revealed such variable practices on this issue.2 Since the practice of what to tell a patient is imprecise to say the least, making a claim (ie, a lawsuit) against a physician could be relatively easy since an attorney probably could readily find an expert who has a different viewpoint of how much should be included. For what it is worth, my own practice is that my consent form does list death as well as fatal forms of leukemia.
While I question Dr Legant on the seemingly weak wording highlighted above, I also note that she employs stronger language later in the article that states, “Current calls for cancer patients always to get a second opinion are often no more than thinly disguised marketing ploys, and also serve to erode patient trust in all their oncologists” (“Ways to Avoid Litigation,” point 5).1 We have previously commented on the dangers of cancer care becoming commercialized and the marketing that follows.3 The potential downside of second opinions (eg, treatment delays) is rarely discussed. However, physicians in private practice, as I am, do enjoy the legal protection that second opinions confer, as well as the camaraderie it provides with our academic colleagues. These advantages are typically done at public expense (typically Medicare), and the financial costs of this “benefit” is rarely discussed, let alone the opportunity costs of important projects that are not funded as a result of what must be a significant expenditure. I have previously questioned the practice of pathology review of all patients at tertiary care centers.4
I would also like to expand on the issue of good communication (“Ways to Avoid Litigation,” point 1).1 My colleagues remind me, as does Dr Legant, that good communication with patients is important in preventing lawsuits. I have previously written on this challenge.5 However, many times, the problem comes about from a family member who lives out of town, and/or whom I have had no contact with, and the “questions” come about after the patient is deceased. My colleagues seem to believe that their excellent relationship with their patients and their spouses will prevent malpractice problems. Meanwhile, a patient's family member, with whom the physician has had little or no contact, could represent the real threat. All the more reason to heed the other advice in the article by Dr Legant.1