Malpractice Risk With Active Surveillance for Patients With Low-Risk Cancer

Get Permission

Investigators have assessed medical malpractice trends related to active surveillance as a treatment strategy across different types of cancers, according to a recent study published by Chang et al in the Annals of Surgery.


Active surveillance is a less invasive approach that reserves surgery for cases involving cancer progresses and allows some patients to avoid the adverse side effects of treatments such as surgery and chemotherapy when the benefit is unclear.

Cancer clinical practice guidelines from the National Comprehensive Cancer Network (NCCN) consider active surveillance an increasingly common and effective method for managing certain low-risk and early-stage cancers such as prostate cancer, thyroid cancer, and renal cell carcinoma. The strategy is currently the standard of care for certain lymphomas as well as an emerging option for the management of stage 0 breast cancer.

However, adoption of active surveillance in practice has been inconsistent and faced with reluctance, because it may be a perceived increased risk of medical malpractice lawsuits among physicians—stemming from unease that the window for a cure may unexpectedly close. Data on medical malpractice trends across different types of cancers have previously been lacking.

Study Methods and Results

In the recent study, the investigators used the 1990 to 2022 Westlaw Edge and LexisNexis Advance databases to examine federal and civil medical malpractice cases involving active surveillance for lymphoma, prostate cancer, thyroid cancer, breast cancer, and renal cell carcinoma across the United States.

They identified five cases related to active surveillance in prostate cancer but no pertinent cases related to the practice in any other cancer type. Among two of the cases, the court was found to defend the practice of active surveillance, determining that it was in accordance with national standards of sound clinical judgment and accepted medical practices. The other three cases involved alleged physician negligence for not having recommended active surveillance as a treatment option in patients who experienced complications after surgery. All of the cases were ruled in favor of the physicians, who had documented informed consent for active surveillance.


The investigators discovered there has been no successful litigation related to active surveillance to date. They emphasized that given the legal precedent detailed in the identified cases—and increasing support across national guidelines—active surveillance may be a sound management option in appropriate patients with low-risk cancers and may present no increased risk of medical malpractice litigation.

“Our team previously published research showing that active surveillance is an effective treatment for many [patients with] low-risk thyroid cancer,” explained senior study author Allen Ho, MD, Co-Director of the Thyroid Cancer Program at Cedars-Sinai Cancer. “These latest findings show no increased risk of medical malpractice with active surveillance across multiple cancer types,” he highlighted.

“[These] data should bolster physicians’ confidence in recommending active surveillance for their patients when it is an appropriate option,” suggested co–study author Timothy Daskivich, MD, Assistant Professor of Surgery at Cedars-Sinai. “Active surveillance maximizes quality of life, avoids unnecessary overtreatment, and…does not increase medicolegal liability to physicians, as detailed in the case dismissals identified in this study. In fact, in some cases, physicians were sued because they didn’t offer active surveillance,” he underscored.

The investigators stressed that failure to discuss an NCCN-recommended approach as a treatment option with patients could be considered prone to litigation. They concluded that physicians may guard against medical malpractice by thoroughly communicating active surveillance to patients, engaging with the institution’s compliance officers or legal counsel to develop standardized consent templates, and integrating patient preferences and personal values when proposing active surveillance as a treatment option.

Disclosure: For full disclosures of the study authors, visit

The content in this post has not been reviewed by the American Society of Clinical Oncology, Inc. (ASCO®) and does not necessarily reflect the ideas and opinions of ASCO®.