Doctors get sued for two main reasons: undesirable outcomes and unhappy patients, Richard Duszak, Jr, MD, of Emory University School of Medicine, said at RSNA 2015.
It’s not a popular topic of discussion for obvious reasons, but according to an article in The New England Journal of Medicine, 90% of radiologists will have been sued at least once during their career by the age of 65. An article in the JACR pegged radiology as the eighth most likely responsible service to be implicated in a medical malpractice claim.
In the eyes of the law, but not necessarily the jury, Duszak described the aspects necessary for a successful malpractice claim:
Duty: Exists when a health care entity or provider undertakes the care or treatment of a patient.
“If I’m in the reading room in the hospital and someone comes to me because ‘Mrs. Jones’ across the hall in CT is having hives,’ and I say ‘I’m really busy, just see what happens,” I have a duty to that patient,” Duszak said. “And I’ve breached that duty.”
Alternatively, if a physician is on a plane and is asked if there is a doctor on board, there is no legal duty, Duszak said. He claimed that, in this scenario, a physician might have ethical duty, but there is no legal grounds for medical malpractice for not taking on the care of the fellow passenger.
Breach: When the provider failed to perform the relevant standard of care. The official definition can vary but it generally is the behavior of an ordinary, reasonable, and prudent physician. It is defined by the course of action to which a reasonably prudent physician in the relevant specialty would have taken under the same circumstances.
Causation: The breach of duty was a proximal cause of the injury. A radiologist who misses a lung nodule in a chest X-ray, but then the patient dies of a subarachnoid hemorrhage over the weekend, doesn’t make the radiologist vulnerable to a malpractice claim because the radiologist’s miss was not the proximate cause of injury, Duszak said.
Damages: This definition varies from jurisdiction to jurisdiction, he said. Generally, the patient must have sustained an injury as a result of the physician’s negligence. In reality, Duszak said, damages are defined wholly by the jury.
He cited a Los Angeles Times article in which a woman claimed that an allergic reaction to iodine from a previous CT scan was responsible for her losing her psychic powers. The jury awarded her $988,000 for damages. (Editor's Note: An updated article in the Los Angeles Times, claimed that the judge threw out the ''grossly excessive' jury award to the woman.)
“It’s a dice roll,” Duszak said.
Duszak, who has served as an expert witness and litigation consultant, focused on the two most common culprits behind radiology malpractice claims: perception and interpretation errors and issues related to communication.
Perception and Interpretation “Errors”
Duszak specifically pointed out that “errors” in perception and interpretation are nuanced. Duszak displayed an example of the popular children’s book, “Where’s Waldo?” and asked the audience to find Waldo, no one found him in the short time the slide was up. The next slide Duszak showed had Waldo circled and arrows pointing to his location. Obviously, everyone found Waldo in the latter slide.
“What I’ve illustrated to you is the concept of hindsight bias,” he said. “This is one of the most difficult things for us, as radiologists, to defend in these types of cases.”
Duszak recalled a case he had been an expert witness for, in which the family of someone who had died of lung cancer sued. Upon being asked why they think the doctor was negligent, they responded, ‘Well look at the arrows, we can all see the cancer right there, I’m not a doctor and I can see it.’
“Once the plaintiff’s attorney shows it to a layperson on the jury, they can’t unsee it,” Duszak said. “It’s one of the most damning things we have in court.”
It’s in a defendant’s best interest to read up on hindsight bias, which is the dependency of people who have a knowledge of the factual outcome of a case to believe that they would have been able to see the finding.
Another important factor is satisfaction of search, which is when the detection of one radiographic abnormality interferes with others.
“We get blinded by pathology, we see ‘ha, there is the diverticulitis on the ER case’ and we dictate it out,” he said. “But you didn’t really take a close look at the kidneys, as you should have, and you missed a small cell carcinoma there.”
Communication Deficiencies and Errors
There are three different categories from the ACR that suggest nonroutine communications: immediate reproach or intervention, findings that are discrepant with a preceding interpretation of the same examination, and findings that the interpreting physician feels may be seriously adverse to the patient’s health; these don’t require immediate attention, but if ignored, would result in an adverse patient outcome.
“Courts are increasingly expecting us, as radiologists, to participate in closing the loop,” Duszak said. “This is one of the fastest growing areas of lawsuits against radiologists, and it’s mostly the noncritical findings that lead most of the suits.”
In an era of declining reimbursement, Duszak warned about the liability of interpreting too many radiographs.
“The metadata from our PACS is there, how many studies did you read that day? How long did you have that study open?” Duszak said.
He cited a case in which the radiologist sued had interpreted 162 radiographs and/or mammograms in one day, and the allegation was that it was a reckless disregard. “He was cranking them through so fast and he just missed,” he said.
“This is real and impacts essentially all of us by the time that we retire,” Duszak said. Whether acting as an expert witness or a defendant, Duszak recommended radiologists be familiar with the ACR Practice Parameter on Physician Expert Witness in Radiology and Radiation Oncology.