Issue: May 2015
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Chemotherapy: Risks and Liabilities When the Treatment Is Toxic

Introduction

Liability Risks for Chemotherapy

More than half of all cancer patients receive chemotherapy. Patients who are receiving chemotherapy face risks for developing infection and other injuries such as leakage of the drug into surrounding tissue, use of the wrong chemotherapy drug, and administration of chemotherapy based on an erroneous diagnosis of cancer, which may be serious enough to result in hospitalization or even death.

 

Injuries related to chemotherapy may give rise to medical malpractice or negligence claims, which can result in high settlements and awards. Patients bring malpractice actions against physicians, but other parties, such as hospitals, nurses, and pharmacists, face potential litigation risks.

 

Attorneys, physicians, hospitals, insurers, employers, and others at risk for liability should be aware of the types of litigation issues that may arise in connection with a chemotherapy injury.


The Perspectives: Improve Your Strategy

Attorneys:

What proof is needed to establish medical malpractice or negligence in an action involving chemotherapy? And, what is a potential strategy for the attorney to employ?

Physicians:

How can liability for medical malpractice be avoided for an injury related to chemotherapy? And, what is a potential strategy for the physician to employ?

Insurers:

Can a payout under a medical malpractice liability policy be avoided by proof that the health provider was not negligent or there was no coverage for the plaintiff’s injury? And, what is a potential strategy for the insurer to employ?

Employers:

Can an employer be subject to liability for an employee’s chemotherapy injury? And, what is a potential strategy for the employer to use? 


Practice the Technique: Checklists

Attorneys:

Check this list of facts and circumstances tending to show a provider’s liability for malpractice or negligence for a chemotherapy injury.

Physicians:

A physician should review the items on this list when defending against claims of malpractice or negligence involving a chemotherapy injury.

Insurers:

The insurer should check these “red flags” and inconsistencies when investigating a claim of chemotherapy injury.

Employers:

Use this checklist to determine if the employee’s chemotherapy injury is “work related” and occurred “in the course of the employment.”

Expert Analysis

What Chemotherapy Is Available and How Does Toxicity Affect Children?

Ruth I. Hoffman, MPH

What Evidence Is Needed To Prove an Action Claiming Chemotherapy Overdose?

Matthew L. White, JD

When Is a Negligence Action Appropriate for Wrongful Death from Chemotherapy Toxicity?

Phyllis Lile-King, JD

Litigation

Alternative Dispute Resolution

Arbitration or mediation may be required by contract or statute, may be mandated by the court or, in some circumstances, may be the appropriate method for a negotiated resolution.


Reasons To Reach Settlement

The following are reasons why the attorney, physician, insurer, or employer would want to reach settlement, and not take the action to trial.


Reasons To Go To Trial

The following are reasons why the attorney, physician, insurer, or employer would want to take the action to trial.


Jury Awards and Settlements

How much have juries awarded and what settlements have been reached recently in cases involving chemotherapy injury?



Medical Examples

Chemotherapy

This section provides an overview, the terminology used, detailed medical information on chemotherapy treatment, when chemotherapy instead of or in addition to surgery or radiation is used, cancer resistance to chemotherapy, this treatment’s side effects, and the potential injuries resulting from improper chemotherapy treatment such as liver damage from toxicity. This section also mentions the patient’s prognosis and ability to work.



Law and Medicine Resources

Law and Medicine Resources

Provided is a listing of law and medical resources for further information on chemotherapy injury.  


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Chemotherapy: Risks and Liabilities When the Treatment Is Toxic

Table of Contents
Introduction

Expert Analysis
   Ruth I. Hoffman, MPH
   Matthew L. White, JD
   Phyllis Lile-King, JD

The Perspectives: Improve Your Strategy
   Attorneys
   Physicians and Health Providers
   Insurers
   Employers and Risk Managers

Practice the Technique: Checklists
   Attorney Checklist
   Physician Checklist
   Insurer Checklist
   Employer Checklist

Alternative Dispute Resolution

Reasons To Reach Settlement

Reasons To Go To Trial

Jury Awards and Settlements

Chemotherapy

Law and Medicine Resources