Oncologists throughout the US are increasingly seeing patients who have advanced-stage cancers. The COVID-19 pandemic made many patients hesitant to enter a doctor’s office. This, along with medical facilities only admitting patients with an emergency or COVID-19, has led to a lack of diagnosis and treatment for patients with cancer. Cancer screenings have plummeted steeply, according to a June 2020 National Cancer Institute model, which estimated a 75% decrease in mammograms and colonoscopies during the first few months of the pandemic and projected delays in screenings, diagnoses, and treatment that could yield an additional 10,000 breast and colorectal cancer deaths over the next decade. According to a 2020 BMJ study, mortality risk increases by 6% to 13% when patients delay cancer treatment even by one month.
Failure to diagnose cancer is one of the most common medical malpractice allegations. According to a March 2021 survey by insurer The Doctors Company, one third of physicians are concerned with an increase in malpractice claims arising from care during the pandemic. However, veteran plaintiff and defense attorneys do not see an increased risk for physician medical malpractice liability. According to Richard Robert, MD, JD, professor of family medicine at the University of Wisconsin and medical malpractice attorney, a patient’s choice not to enter a doctor’s office cannot be pinned on a physician, and a physician’s choice to not schedule appointments due to a public health emergency is not cause for liability.
In an effort to protect clinicians from lawsuits, upwards of 30 states have enacted COVID-19-related liability protections that require hard-to-prove allegations of gross negligence or reckless behavior. While these provisions might serve well in protecting physicians from lawsuits by patients who had COVID-19, it is unclear how they will fare with regard to other conditions like cancer. Malpractice plaintiff attorney Steven Wigrizer, JD, believes that jurors will be hesitant to hold physicians liable, considering that medical professionals are simply trying their best to safely navigate a global pandemic.
Telemedicine’s increasing popularity due to COVID-19 has given rise to another concern—missed cancer diagnoses via telemedicine visits—because telehealth physicians lack the ability to feel potential cancer indictors like masses and enlarged organs. Furthermore, radiologists and pathologists run the risk of being held liable for missing tumors when reading imaging results, a potential result of COVID-19’s overburdening demand on resources and healthcare professionals.
According to oncologist and The Doctors Company CEO Richard Anderson, MD, physicians most vulnerable to malpractice claims are those whose patients identified a potential cancer symptom, like a breast lump or rectal bleeding, but the patient felt too worried about COVID-19 to be seen by their healthcare provider. Malpractice defense attorney Sean Byrne, JD, points to physicians either not informing patients about concerning test results or not ordering a follow-up test or visit as another situation with potentially viable physician liability. Byrne suggests that physicians attempt to mitigate potential liability cropping up from the past year by meticulously reviewing patients’ charts and encouraging them to be up-to-date on preventative screenings.