Medical Malpractice: Can We Do Better?

Twitter icon
Facebook icon
LinkedIn icon
e-mail icon
Google icon
 - Radiologist

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,