Diagnostic Imaging
March 2003

MALPRACTICE MONITOR

Standards of care protect radiologists

Written best practice guidelines help fend off malpractice biases but can cause harm

When a radiologist is sued for malpractice, a fundamental question for judge and jury is the issue of professional negligence: "Did the radiologist's practice fall below the standard of care?" In legal terminology, was there a "breach of duty" on the part of the radiologist? But the questions of what exactly constitutes the standard of care, what is reasonable, and who decides also need to be addressed. The answers will determine whether this standard is a static benchmark or a flexible and evolving concept, and whether it is something the average radiologist can achieve in routine daily practice.

In 1919, the American College of Surgeons (ACS) and the American Hospital Association introduced the first nationwide system of hospital review, called hospital standardization. This system greatly improved the standards of operation of U.S. hospitals and the quality of medicine practiced by physicians in those hospitals.1 Since the publication of the original ACS standards, other specialty societies have introduced their own standards of practice.

The American College of Radiology began developing written standards of practice in 1986. Since then, the college has adopted more than 100 standards in the areas of diagnostic radiology, nuclear medicine, radiation oncology, interventional radiology, and ultrasound.2 They have become the de facto standards to which radiologists across the country are often held, according to legal experts. These benchmarks are used in malpractice proceedings to decide whether a radiologist has fulfilled his or her duty to uphold standards within the profession.

It is clearly stated on every page: "The standards of the ACR are not rules, but are guidelines that attempt to define principles of practice, which should in general produce high-quality radiological care." Physicians may modify these standards in an individual patient depending on available resources and the facts of that particular case. The disclaimer also indicates that standards are "not intended to establish a legal standard of care or conduct, and deviation from a standard does not, in and of itself, indicate or imply that such medical practice is below an acceptable level of care." Furthermore, "judgment of the reasonableness of any specific procedure or course of conduct is made by the radiologist depending upon circumstances of an individual situation."2

Since these standards were published by the ACR, they carry considerable weight during malpractice proceedings. The fact that these standards were compiled by a committee of national leaders is not lost on jurors and judges weighing the relative merit of opposing arguments. The standards are a dynamic document, revised on a regular basis. Individual radiologists may submit data to the Commission on Standards and Accreditation for incorporation or revision of published data.

CASE FOR STANDARDS

Some radiologists may prefer not to have written guidelines, but U.S. society continues to demand scientific, clinically valid measures to judge the performance of professionals in every field. Many other medical specialties have written standards and clinical "care paths" and "best practices" ingrained in daily practice.3 Standards theoretically decrease potential liability for physicians by providing nationally accepted practice performance benchmarks. Following published standards in the field should, in theory, minimize evidence of malpractice. Unfortunately, little evidence suggests that standards have actually decreased liability claims for U.S. physicians.

Nonetheless, the ACR standards likely improve the fairness of malpractice litigation by giving the public more clearly defined guidelines for evaluating radiologist performance. Without standards or principles of practice, a radiologist-defendant is more susceptible to the bias of plaintiff's lawyers and hired expert witnesses. A judge or jury is left to decide which witness is most credible. This inherent variability is often detrimental for the defendant in a radiology malpractice case. Having national organizations provide guidelines improves the fairness of this process. But radiologists must be familiar with and follow the standards, unless clear indications dictate otherwise.

Thus standards are a double-edged sword. They are used to support the defendant's position and refute the plaintiff's expert witness. But they may also show how the radiologist-defendant deviated from generally accepted principles of practice.

A physician may be held liable for malpractice only if the judge or jury finds that the physician's conduct fell below the standard of medical care.4 Determining which standard to use is not easy, however, because legal and medical experts differ. The courts are fairly consistent in how they define the standard of care. An Ohio appellate court issued the following judgment in Jewett v Our Lady of Mercy Hospital of Mariemont, 612 NE2d (Ohio App 1992):

"In order to establish medical malpractice it must be shown by a preponderance of the evidence that the injury complained of (by the patient) was caused by the doing of some particular thing that a physician of ordinary skill, care and diligence, would not have done under like or similar conditions or circumstances, or by the failure or omission to do some particular thing that such a physician would have done under like or similar conditions or circumstances. The standard of care for the physician in the practice of a board-certified medical specialty should be that of a reasonable specialist practicing medicine in that same specialty in light of the scientific knowledge in that specialty field."5

A District of Columbia court ruled in Washington v Washington Hospital Center, 579 A2d 177 (DC App 1990) that standard care is "that course of action that a reasonably prudent physician in the defendant's specialty would have taken under the same or similar circumstances."6 The problem is that words like ordinary, reasonable, and prudent are confusing to nonlegal personnel. Physicians are left to wonder exactly how the standard of care is derived. Is it an idealized form, or is it an academic, practical, medicolegal, or economic set of guidelines?

In the past, medical malpractice cases were argued by competing expert witnesses who promoted their version of the standard of care, leaving the jury to decide whom to believe. Current authors believe these standards of care are generated not exclusively from external authorities such as the ACR, but rather from interaction among leaders of the profession as well as colleagues, reports in the literature, and educational seminars.5 Standards are formed in a decentralized process, without a central authority figure. Alternative sources for standard of care include scholarly materials, such as articles published in peer-reviewed journals, which are generally allowed into litigation proceedings.

This type of evidence may support the radiologist-defendant's cause, depending on how authentic it appears to the jury and how relevant to the case at hand. Other sources involve local and national guidelines of other organizations. Radiologists often follow the guidelines of the American Cancer Society, American College of Obstetricians and Gynecologists, Joint Commission on Accreditation of Healthcare Organizations, and other nonradiology societies.6 Some HMOs and insurance companies have their own policies and procedures that they require their insured physicians to follow.7 Standards may even come from state and federal governments, in the form of legislation and FDA regulations. The Mammography Quality Standards Act (MQSA) of 1992 is one example of a federal mandate for practice guidelines.

The intent of these regulations and guidelines is to improve patient care, but a byproduct may be diminished cost of malpractice litigation, although this has not occurred. Indeed, some reports indicate that written standards are more often used against physicians than in their defense.1

CHOOSING A STANDARD

Radiologists are held to a national standard, applied to all parts of the country. The rural radiologist is held to essentially the same standard as the big city specialist. If viable practice patterns are promulgated at the local level, however, this provides a powerful argument for the radiologist's defense. Radiology groups may have protocols and methods for performing certain examinations that differ from colleagues in other areas of the country. If members of the group have accepted practice guidelines and procedures, this may be interpreted as reasonable evidence of working within the standard of care. There is safety in numbers.

Conversely, radiology groups with a wide variety of internal practice patterns are at increased risk. Lack of consistency creates liability. Even worse is the practitioner who doesn't follow the written standards of his or her own group or hospital. This is an easy case for the plaintiff's lawyer.

Overriding all of these issues is the "reasonableness" statute. Tort law relies heavily on physicians performing within a reasonable manner, to the skill level of an average practitioner in the specialty, within like or similar circumstances.6 It does not require superior expertise in the field. You do not have to be the world expert in small bowel enteroclysis or diffusion-weighted MRI in order to perform these studies. You do have to perform them on a regular basis in a reasonably informed fashion, with the skill level of an average radiologist.

A world expert may not qualify as a plaintiff's expert witness, depending on the issues at hand. In a recent legal case that I consulted on, the plaintiff's witness was a nationally known expert in ultrasound, practicing the specialty exclusively at a major university. In this case of an ectopic pregnancy, the general radiologist and ultrasound technologist missed the diagnosis in the middle of the night. The patient was extremely large, and the ectopic was situated up against the fundus of the uterus. I pointed out to the defense attorney that the plaintiff's national expert did not represent the skill level of the average radiologist, practicing in like or similar circumstances. As such, he did not qualify to render standard of care opinion against the defendant. The expert was eventually removed from the case and the radiologist dropped from the lawsuit.

Radiologists need to become familiar with the published ACR standards. They need to have clinical expertise and adhere to the standards for the procedures they perform on a regular basis. The standards are written in broad, general terms, representing the minimum, and should not be difficult for the average radiologist to achieve. In cases that involve a need to deviate from published guidelines, it is incumbent on the radiologist to explain why a procedure is performed or treatment is altered in a manner different from usual practice.

Dr. Chesbrough is senior staff radiologist at the Henry Ford Health System in Detroit. He is a consultant to two malpractice insurance carriers in Michigan and to 15 law firms in Michigan and Ohio.

References

1. Miller RD, Hutton RC. Problems in health care law. 8th ed. Gaithersburg, MD: Aspen Publication, 2000:273-274, 361-420.

2. Standards 2000-2001. American College of Radiology 2000.

3. Towsley-Cook DM, Young TA. Ethical and legal issues for imaging professionals. St. Louis: Mosby, 1999:35-43.

4. Berlin L. Malpractice issues in radiology. AJR 1998;170:1417-1422.

5. Vidmar N. Medical malpractice and the American jury. Ann Arbor: University of Michigan Press, 1995:69-76, 86-87, 121-126.

6. Pozgar GD. Legal aspects of health care administration. 7th ed. Gaithersburg, MD: Aspen Publication, 1999:27-38, 427-438.