Diagnostic Imaging
November 2003

COUNTERPOINT

Expert witness review helps protect patients

System has potential to render reasonable interpretations of malpractice claims

In response to Dr. Mark E. Klein's recent article regarding expert witnesses ("Say no to peers who weaken mammography," August, page 25), I would like to offer a slightly different perspective. As an experienced medicolegal expert, generally for doctors and insurance companies, I agree with the tone of Dr. Klein's argument, but the issues are complex, and they demand a more balanced appraisal.

We cannot condemn our peers for evaluating cases at the request of a patient's lawyer. Radiologists need to be involved in both plaintiff and defense cases. It is important that these witnesses be viewed as unbiased third parties, not as "a party to the cause of action." Otherwise, judges and juries might consider them hired guns for one side or the other and discount their opinions.

Most radiologists forget that a large number of plaintiff's cases are abandoned after review by the radiology expert witness. In my experience, many are dropped because these expert reviews reveal that there simply is no case or the findings are too subtle to qualify as a deviation from standard of care. Attorneys can spend $50,000 to $100,000 out of pocket to take a case to trial, so it is in their best interest to differentiate the appropriate cases from the nuisance lawsuits.

One could infer from Dr. Klein's article that every missed mammography finding represents not malpractice but a limitation of technology. Of course, this is not always the case. From time to time, I see malpractice claims that deserve further investigation. I've seen cases in which obvious masses and suspicious calcifications were overlooked or simply assumed to be benign. In other cases, possible masses were evaluated with only one additional view, which didn't even include the area in question. I have seen irregular, hypoechoic masses with low-level echoes and posterior shadowing that were ignored or called benign cysts. And women with dense breasts with palpable malignancies regularly have "negative" mammograms and no further workup because "the mammogram ruled out anything serious."

These types of malpractice cases are clearly unusual, but they cannot be allowed to go unquestioned by our profession. We must have basic standards and we must make sincere efforts to enforce them. Negligence paints all radiologists in a bad light and calls into question the skills of our specialty.

In the words of Winston Churchill, ". . . democracy is the worst form of government except all those other forms that have been tried from time to time." Similarly, we may not like today's system of malpractice litigation, but what do we offer as an alternative? What methods can we use to weed out bad radiologists? How much radiology peer review actually occurs, and with what sanctions against wayward physicians?

While the current system has flaws and may be overly subjective, it is the only system in place. It is the expert witness who is charged with reviewing a case and determining whether it is actionable. If done in an honest fashion, recognizing inherent bias in the process, this system has the potential to render reasonable interpretations of the malpractice claims. As bad as it is to testify fraudulently against a fellow physician, should we not be equally outraged by defense experts who will say anything to protect an incompetent or dangerous colleague? One victim pays in malpractice premiums, the other pays with his or her life.

Dr. Klein makes the point that physicians should not be a part of this sort of peer review because it aids and abets malpractice attorneys. I would point out that this type of review is mandated by the American Medical Association. The medical community considers the process of peer review and expert witness review to be not only ethical, but desirable, according to the AMA. The idea of a blanket avoidance of expert review for plaintiff's attorneys suggests a closed system and a "conspiracy of silence," which physicians are often accused of maintaining. Articles that invoke a professional gag order may be used to prove to a jury that physicians are not willing to be honest. This is certainly undesirable for our profession, not to mention our society. It is only by the grace of God that any one of us avoids gross malpractice and the need for a plaintiff's attorney to try to recover damages.

Finally, Dr. Klein suggests the rather drastic notion that radiologists should avoid attending the courses of academic radiologists who partake in plaintiff's reviews. I would point out that this is an activity performed by both private and academic radiologists, and one that, if done ethically, is in the best interest of our profession. If the courses taught by academic radiologists involved in malpractice reviews were boycotted, very few courses might be left to attend. As jury verdict publications would attest, some of the biggest names in radiology are actively involved in plaintiff medical legal reviews. It is my hope that they are providing these services in a professional, unbiased manner.

Although I share many of Dr. Klein's concerns, the system in place is the only one currently available to injured patients. While a few bad apples may be providing fraudulent medical legal reviews, I suspect this is not as widespread a problem as his column would indicate. After seven years of medicolegal work, I can state unequivocally that the majority of reasonable malpractice claims tend to be settled, with few going on to trial. The nuisance cases and unreasonable claims are generally dropped or settled with minimal payment to the plaintiffs and their attorneys.

I agree with Dr. Klein that a system of checks and balances may be helpful to the expert witness process. In the future, the American College of Radiology may need to construct an internal peer-review organization to evaluate occasional claims of egregious radiology plaintiff review. Similar to recent proposals within the American Society of Neurosurgeons, the ACR or other radiology organizations might impose sanctions if a radiologist is consistently involved in fraudulent expert opinions. Memberships, fellowships, and other titles could be revoked, all of which the expert would have to admit to at his or her next deposition. If performed correctly, this activity could provide important oversight of plaintiff's experts and the medical litigation process.

Dr. Chesbrough is senior staff radiologist at Henry Ford Health System in Detroit and a consultant to AP Capital and ProNational insurance companies and to defense law firms in Michigan and Ohio. He can be reached at richardc@rad.hfh.edu.

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Dr. Klein replies:

Dr. Chesbrough, a medicolegal expert who has participated in malpractice cases on both sides of the issue, raises important points, which I have summarized below. Each is followed by my response.

- Dr. Chesbrough offers a frequently repeated rationale for radiologists testifying for plaintiffs, which is that radiologists need to participate in both plaintiff and defense cases to appear unbiased, or they will be judged as hired guns for one side or another.

We are hired guns, on both sides of the issue. Juries are well aware that experts are paid large sums for their appearances. Since our literature has documented that mammography can achieve only 79% sensitivity for the detection of breast cancer even in excellent hands, we are under absolutely no obligation to testify for plaintiffs. Instead, we should be shouting from the rooftops that the "standard of care" concept as currently employed is flawed. The question posed in standard of care determination should not be "Should a well-trained experienced mammographer have seen the cancer?" but more appropriately, "Could a well-trained experienced mammographer have reasonably missed the cancer?"