Medical Malpractice: Can We Do Better?

As many as one-third of radiologists will be sued during their careers for allegedly negligently causing injury to patients, usually for failing to diagnose a cancer.

The prospect of a lawsuit haunts many radiologists, with some more vulnerable than others. In fact, equality before the law takes a sabbatical when it comes to medical malpractice. Data show male radiologists who practice in Utah and New York face the highest risks of being sued.

Yet experts remain puzzled: the recession has reduced physicians’ risk of being sued along with the frivolity of cases. Some states have seen malpractice claims drop by nearly half since 2009. In addition, only a fraction of malpractice allegations manage to persuade juries, while the vast majority of cases never make it to trial.  

Recent trends aside, fear of lawsuits dramatically shapes how physicians practice medicine, spurring a problem radiologists know all too well—overutilization.

Chicken or egg: Over-suing & overutilization

With more lawyers in the U.S. than any country, radiology’s expansion in the second half of the 20th century was accompanied by an exponential growth in malpractice lawsuits. Before the 1950s, most lawsuits alleged errors of commission, medical practice that actively harmed patients. The majority of medical malpractice in the second half of the century, in contrast, can be attributed to acts of omission, says Leonard Berlin, MD, professor of radiology at Rush University and University of Illinois, both in Chicago.  

“Seventy-five percent of radiology lawsuits allege failure to diagnose or failure to communicate a finding in a timely manner,” notes Michael M. Raskin, MD, PhD, JD, MBA, a neuroradiologist at the University of Miami School of Medicine. Radiologists, who tend to be moderately more susceptible to litigation than other specialties, face the highest risks of missed diagnosis in cases of breast cancer and lung cancer, according to Berlin and Raskin.

Although incorrect diagnosis plays only an ancillary role in malpractice, Raskin warns that ancillary findings, or incidentalomas, are not exempt from medico-legal liability. “You are responsible for the four corners of the film, regardless of what you are asked to look for.”

It is sustained trends—more lawsuits, higher awards and elevated expectations that doctors practice perfect medicine—which physicians cite as major reasons for the acceleration of (unnecessary) medical imaging. “There’s no question that the fear of malpractice affects radiologists’ practice. Defensive medicine has been fueled by the malpractice quagmire.

Physicians will order the test, because it puts them in a better position medico-legally,” Berlin reflects. But Raskin notes that the failure to perform an additional study, which is at the heart of defensive medicine, is rarely a source of malpractice.

At the center of law’s intersection with medicine is the determination of the standard of care. “For there to be malpractice from the legal definition, there has to be a deviation from the standard of care provided by the physician, and the patient has to suffer injury as a result of that deviation,” explains Patrice F. Hirning, MD, medical director of the Utah Medical Insurance Association, a medical malpractice insurance company.   

“The standard of care is what a reasonable physician would do under the same or similar circumstances,” Berlin says. In the courtroom, it is a jury of non-physicians that ultimately determines what a reasonable physician should do, after hearing testimony from each side’s expert witness(es). Raskin argues that because the standard of care is defined by adversarial expert witnesses, the definition can become “circuitous, an acceptable level of care where one notch below is below the standard of care.”  

In practice, the subjective nature of the standard of care means physicians with non-identical training, practicing in large academic medical centers or small practices, utilizing disparate resources and reading under unequal circumstances, can reasonably disagree, says Hirning. Although hindsight is inadmissible, Raskin says “the problem is when jurors see a lesion on the mammogram, which looks quite obvious with big arrows and marks pointing at it, the jurors can’t understand why the radiologist couldn’t see it.”

With the Physician Insurers Association of America (PIAA) reporting average payments (awarded by jury or settlement) at $300,000, and average jury awards reaching into the low millions, various stakeholders have called for reform. Although some states have instituted caps on non-economic damages, tort reform was noticeably absent from the Patient Protection and Affordable Care Act.

Berlin and Raskin are skeptical that reform would constitute a panacea, and Berlin doubts whether limits on damages and other reforms would have even a small effect on defensive medicine. “Even if we see complete tort reform, defensive medicine won’t ever go away, especially with the younger generation who grew up in the era of ‘order the test.’ It’s ingrained.”

Communication breakdown

While the technology boon and commoditization of the specialty may have made radiologists ever more invisible to patients, “courts have consistently held that radiologists are part of the patient care team and that the communication of a finding is as important as the diagnosis itself,” Raskin says. Radiologists are responsible for communication of findings, especially urgent ones, by whatever means necessary. This begins with the exam and ends only when radiologists “make sure the ordering physician sees the final report,” Hirning affirms. Berlin and Raskin urge radiologists to communicate findings directly to patients, particularly when their primary care provider is unavailable.  

Radiologists’ “lagging communicative skills” have become particularly thorny since the upsurge of teleradiology, says Raskin. The primary read performed by non-local radiologists generally exculpates teleradiologists from liability, leaving final readers, who often parrot the teleradiologists, on the hook. A source of ambiguity has arisen in the emergency department when the primary read is inaccurate and the final read is correct but late for the patient. The long and the short, Berlin says, “is the failure to communicate findings is a big issue in malpractice, and it’s only become more common in the last decade.” Hirning agrees, adding “in theory, health IT like EHRs and automatic results information systems make us communicate better, but we’re not seeing that affect liability yet.”

Case closed?

With a lifetime risk of lawsuit approaching 50 percent for radiologists, it may not be too strong to claim that malpractice haunts the specialty. Although sometimes excessive jury awards and the toll of litigation contribute to the perception of the medical malpractice system as unjust, fewer than one-quarter of claims end in payment to plaintiffs, according to the PIAA. “Far from perfect,” Berlin notes, “the medical malpractice system works reasonably well.” Raskin’s advice is simple: The best way to protect against malpractice is to practice the best medicine you can.

Malpractice Claim Timeline

Varies by state, amalgam of Utah and Montana

• Pre-litigation: Patient and counsel allege malpractice, notice given to physician. A medico-legal panel consisting of physicians, specialists, lawyers and/or lay people makes a non-binding recommendation: patient’s claim is meritorious/non-meritorious, within or outside the standard of care. Case can proceed regardless.
• Reassessment: Plaintiffs, defendants and attorneys reassess the case, including estimation of fault and likely costs. Other relevant factors mediating fault include gravity of injury, patient circumstances and costs required to mount a defense, even if the physician receives favorable judgment. Approximately two-thirds of claims are dropped, withdrawn or dismissed.
• Settlement/Mediation or Arbitration: Plaintiff and defendant’s teams try to reach agreement on payment.
• Sometimes patients want an explanation or apology as much as compensation, says Patrice F. Hirning, MD, medical director of the Utah Medical Insurance Association. Approximately 20 percent of cases end in settlement.
• Processes vary and range from mutually appointed non-binding mediators to binding arbitrators. Advantages to mediation and arbitration include reduced legal costs, shorter duration of litigation and looser requirements on evidence, video testimony and depositions.
• Trial: Expert witnesses testify; trial lasts several weeks, physician misses work. Fewer than 10 percent of claims make it to trial. More than 75 percent of these are decided in the defendant’s favor.
• Malpractice Stress Syndrome: After a case closes, major psychological and work-related effects can persist. Embarrassment, silence, stress, added fear and breach of confidence can negatively impact practice and create further risks of malpractice, says Hirning.

Sources: Patrice F. Hirning, Utah Medical Insurance Association and Physician Insurers Association of America