RSNA: Attorney tells rads what to do—and what not to do—after messing up

CHICAGO—After erring so badly that a patient injury is caused or exacerbated by a mistake in image interpretation, what should a radiologist do to own up to his or her professional duty while protecting him- or herself from being run out of business?

Rosemary Schnall, JD, a partner with multi-state White and Williams LLP, took up that question in a session on “mitigation of litigation” at RSNA.

She began her answer by advising attendees to first consider whether it’s possible to remediate the effect of the error.

“A lot of times you might not be able to do this because you might not know about the [situation] until you get served with a complaint,” said Schnall. “But to the extent that you are able to remediate the error, do so.”

That might mean issuing a supplemental report and naming it as such.

Don’t alter the existing record—and “don’t fall on your sword.”

To illustrate the likely fallout of choosing the latter option, Schnall relayed a “horror story” of a radiologist who thought he was doing the right thing.

A 43-year-old woman had been suffering with headaches. Her primary care physician sent her for an MRI of the brain. The radiologist read the film as showing severe stenosis of the distal internal carotid artery, and nothing more.

The next morning the woman went to the emergency room, where an emergency CT scan showed that she had a subarachnoid bleed. Before long, she died.

“This incident got around the rumor mill at the hospital and back to the radiologist, who then went and took another look at the images. He then realized that he had missed an aneurysm,” said Schnall. “He thought this case could result in a lawsuit, so he wrote a letter to his insurance broker to put them on notice.”

In the letter, the radiologist put in writing that he had failed to identify what would soon become a fatal hemorrhage.

“To me as a defense attorney, he did not need to write that out” with the knowledge afforded him by hindsight, said Schnall. “He could just have stuck with the facts. When he got to deposition, of course, this letter was discoverable. It came out and made it very difficult to try to defend him.”

“If you make a mistake, determine if you need to report that,” added Schnall. “Do you need to tell the patient about it? Do you need to tell other physicians? In some states, there is a physician safety office and a department of health that have to be notified of certain mistakes. The liability carrier [needs to know], and is there anyone else in your organization, such as a risk manager,” who needs to know?

But above all, she stressed, never alter the original report—i.e., the “existing record.”

Most cases aren’t worth pursuing

In the same session, Kelly Yousem, JD, offered interesting insights, not specific to radiology, on how she determines whether or not a potential malpractice case is worth taking.

“I have been doing this for 25 or 30 years, and I will tell you that I turn down about 98 percent of the cases that I see. And of the 2 percent of cases that I do take, we have to establish all the elements of the case. In order to do that, we have to hire an expert witness.”

No ready and willing expert witness, no case—even in many situations that appear obvious even to laymen.

Yousem described one such case. A man who underwent orchiectomy and subsequent retroperitoneal lymph node dissection following a diagnosis of testicular cancer lived with pain for 20 years.

Eventually, abdominal imaging revealed a ribbon retractor, two inches wide and some 14 inches long, that had been left in the patient at surgery.

“I managed to track the case down,” Yousem said, adding that the error was entirely obvious by the abdominal image. “But I still needed an expert witness to say that this was below the standard of care.”

The other thing Yousem considers before proceeding is the plaintiff him- or herself.

“I have people come to me all the time and they are mad at a doctor for doing [or not doing] X, Y or Z,” she explained. “And they get really angry when I ask them how they’re doing. They say, ‘Well, I’m fine now.’ I will usually tell them they can fight, but they don’t have a case. And they get angry with me for that, too. But you have to have all of those pieces.”

“You can have the best case in the world,” said Yousem, “but if the plaintiff is someone that the jury simply is not going to like, they’re not going to award anything.”

Ethics and the expert witness

On the touchy subject of radiologists serving as financially compensated expert witnesses in malpractice cases, discussion moderator Leonard Berlin, MD, of Rush Medical College and the University of Illinois College of Medicine, put in a plug for the American College of Radiology’s ethics committee.

“Anyone who has a potential grievance against an expert witness is certainly free to lodge a complaint” with this committee, said Berlin, who is a past chairman of the committee. “It is done in private, it is done confidentially, the committee will investigate and do an evaluation. And in some cases they can either pass it over or they can suspend or actually terminate the membership [of an offending radiologist]. That’s very rare; I can only think of one case of membership termination. And of course, the radiologist being investigated has to be a member of ACR.”

Berlin also weighed in on the possibility of penalties for paid expert witnesses who give false testimony.

“Can you be punished legally? The answer is probably not,” said Berlin, “because there are a lot of court decisions around the country saying that expert witnesses have to be permitted to testify as they wish—even if they lie—because you have to have the courts open to expert witnesses. If you start penalizing an expert witness, nobody is going to want to be an expert witness.”

Berlin concluded, “Even the U.S. Supreme Court has said that the way to uncover incorrect or false testimony is cross examination by the opposing lawyer.”