AHRA 2011: Malpractice Suits Down, but Potential Liability Lingers

August 17, 2011

GRAPEVINE, TEXAS - Facing a medical malpractice lawsuit can be a daunting, years-long process. But Detroit lawyer David M. Ottenwess had some simple, initial advice for radiology managers: Don't panic.

GRAPEVINE, TX - Facing a medical malpractice lawsuit can be a daunting, years-long process. But Detroit lawyer David M. Ottenwess had some simple, initial advice for radiology managers: Don't panic.

That's where he and other lawyers representing health care providers come in.

In his roughly 25 years as a trial attorney representing physicians, hospitals, and health care personnel, Ottenwess has amassed countless tips, some of which he shared at AHRA's annual conference this week. Ottenwess advised medical professionals being sued to stay calm and contact their or their organization's lawyer.

"Don't say anything until you speak to the lawyer," he said.

Commiserating with colleagues, or analyzing the circumstances surrounding an accusation, could inadvertently draw in potential new lawsuit witnesses.

Although most of the cases he's defended haven't targeted imaging technologists - a handful have involved image contrast - he cautioned that all medical professionals should still be braced for battle.

"It is very important that the defendant prepares well" in addressing negligence accusations, he said. "It's something that's just a grating, difficult process."

That process can take years to either settle or see the inside of a courtroom, and could mean millions in fees, including doctors' personal earnings. That's part of why Ottenwess applauds efforts to stem frivolous malpractice suits.

He called for "the need to avoid these runaway judgments" and deemed attempts to limit non-economic, or so-called pain and suffering damages, "the best part of tort reform."

Several states have enacted limits to control overzealous litigation, through caps on certain damages awarded or adopting stronger requirements for medical expert witness testimony. The result has helped an overall 77 percent national drop in medical malpractice suits since around 2002, Ottenwess praised.

But he stopped short of calling reform a victory for the medical industry. Physicians' insurance premiums, after all, had remained high for years throughout efforts to curb extraneous legal actions. As the volume of suits fell, premiums only saw modest drops in recent years.

Though statewide campaigns to reform have helped, the best defense against legal liability could be assuring an employer offers a solid risk management and compliance program to protect its staff.

"A good risk management and compliance program will go further than tort reform in terms of cutting down your exposure," Ottenwess advised.

Such protection could prove invaluable, as potential liability issues are on the horizon for the radiology industry.

As more organizations employ teleradiologists, they may be increasing the potential for exposure to error and potential legal hiccups, said Ottenwess, who represents a large radiology group in Michigan. The potential for problems heightens as teleradiologists are given the responsibility of providing final or formal image reads.

"Where is the medical liability going to lie?" Ottenwess questioned.