Cure litigious bent by teaching, not tort reform

November 1, 2007

As 2007 comes to a close, it is a good time to pause and contemplate what 2008 and beyond may bring with regard to medical malpractice litigation in the U.S. There is good news and bad news.

As 2007 comes to a close, it is a good time to pause and contemplate what 2008 and beyond may bring with regard to medical malpractice litigation in the U.S. There is good news and bad news.

The good news: The number of malpractice lawsuits in the nation has been slowly decreasing over the past several years. Frivolous lawsuits are on the wane because of the high cost of executing them. The average compensatory award to injured patients has risen only slightly, in line with inflation. As a result, medical malpractice insurance premiums have dropped in many states.

The bad news: Those lawsuits that are filed are associated with more severe patient injury and thus are more likely to be resolved in favor of the plaintiff. Attorneys will tell you there has been no slowdown in people's desire to sue their doctors for injuries sustained while under medical care.

Until the latter part of the 20th century, malpractice lawsuits alleged that defendant-physicians had done something wrong: They were negligent for acts of commission. Then the nature of medical malpractice litigation began to change. Instead of alleging acts of commission, malpractice lawsuits began alleging acts of omission; in other words, physicians were negligent for failing to do something right.1,2

In fact, 75% of medical malpractice lawsuits filed against radiologists are for missing a diagnosis by committing either a perceptual error in failing to "see" an abnormal finding on a radiologic study or a cognitive error in attaching the wrong significance to a finding that is seen. Increasingly, however, radiologists are charged with negligence for failing to communicate their findings to the referring physicians or patients.

DIAGNOSTIC ERRORS

A multitude of articles published over the decades have confirmed that if radiologists are blindly given a stack of radiographic, CT, or MRI studies that harbor significant abnormalities, approximately 30% of the abnormalities will be missed. While this 30% statistic has been stable over the years, it should be pointed out that if those abnormal cases are intermingled with a large number of normal cases, as is common in hospitals and offices, the radiologist's overall miss rate drops to approximately 3% to 4%.3,4 Computer-assisted detection might one day help lower the error rate in diagnostic radiology, but such a reduction has evaded corroboration so far.

FAILURE TO COMMUNICATE

Insurance data disclose that failure to communicate significant diagnostic findings results in the second highest average indemnification payments in medical malpractice litigation, eclipsed only by diagnostic errors.5 Malpractice litigation alleging radiologic miscommunication is growing at a rate faster than malpractice litigation alleging any other type of radiologic wrongdoing. Twenty-five percent of all American College of Radiology members report being involved in at least one malpractice claim involving failure to communicate, with the average payment to plaintiffs in such cases being nearly $2 million each.6

Courts have taken a firm stand with regard to radiologists' duty to communicate radiologic findings. Thirty-six years ago, an Ohio appeals court stated, "Radiologists who provide indirect medical care cannot escape liability by doing no more than relaying information through ordinary hospital channels."7 Courts in many other states have voiced similar sentiments.

One emerging trend is for radiologists to communicate findings directly to patients. Such an approach would virtually eliminate "failed-communication" lawsuits. We've seen this with the implementation of the Mammography Quality Standards Act, which requires breast imaging facilities to relay results directly to patients. Of course, direct communication from radiologist to patient of findings in other types of radiologic examinations would generate new problems, such as who would actually do the informing, how reports to patients should be phrased (particularly if they are abnormal), and the possibility that such an activity would adversely affect the referring physician-radiologist relationship.

Direct communication between radiologist and patient is not currently the standard of care (except in mammography), and I do not necessarily recommend it at this point. Nevertheless, I do believe that it is likely that increasing pressure from government agencies, the courts, and the public itself will eventually result in radiologists and/or radiologic facilities transmitting directly to all patients the results of their radiologic examinations.

MALPRACTICE CONUNDRUM

Many believe that the solution to the malpractice quagmire lies with tort reform legislative packages that usually include caps on indemnification awards for patient injury, along with various types of restrictions that limit the filing of malpractice lawsuits. I consider such legislation to be merely a Band-Aid, a solution that eases symptoms of a disease but does not in any way cure it.

A true cure would have to focus on the definition of "standard of care." From a technically legal point of view, the standard of care imposed on all radiologists and other physicians is the use of "reasonable and ordinary care."

Realistically, the public expects a doctor's performance to be near perfection. With regard to the missed radiologic diagnosis, the question ought to be not, "Was the abnormality missed?" but rather, "Right or wrong, was the radiologist's interpretation reasonable?"

Unfortunately, the fact has been and still remains that the public's expectation is that the radiologist will not miss things. The radiologist's or nonradiologist physician's failure to be perfect leads to a patient's disappointment, which often leads to a patient's anger, which not infrequently leads to litigation. A true "cure" for medical malpractice does not seem to be on the horizon.

I do believe that state governments, and eventually the federal government, will apply more Band-Aids to alleviate the undesirable symptoms of the "disease" of medical malpractice litigation. But the only cure, if there is to be a cure, is an educational effort to change the mindset-the culture-of the public.

The legal and medical communities, judiciary, and lay public must be taught to understand and accept the reality that the standard of medical care calls for reasonable conduct on the part of physicians, not just correct-in-retrospect or perfect conduct. Without this educational effort, medical malpractice litigation will remain with us for the foreseeable future.

Dr. Berlin is the radiology chair at Rush North Shore Medical Center in Skokie, IL.

References

  • Sandor AA. The history of professional liability suits in the United States. JAMA 1957;163(6):459-466.

  • Mohr JC. American medical malpractice litigation in historical perspective. JAMA 2000;283(13):1731-1737.

  • Siegle RL, Baram EM, Reuter SR, et al. Rates of disagreement in imaging interpretation in a group of community hospitals. Acad Radiol 1998;5(3):148-154.

  • Borgstede JP, Lewis RS, Bhargavan M, Sunshine JH. RADPEER quality assurance program: a multifacility study of interpretive disagreement rates. J Am Coll Radiol 2004;1(1):59-65.

  • Physician Insurers Association of American and American College of Radiology. Practice standards claims survey. Rockville, MD: Physician Insurers Association of America, 1997.

  • Kushner DC, Lucey LL. Diagnostic radiology reporting and communication: the ACR guideline. JACR 2005;2(1):15-21.

  • Phillips v. Good Samaritan Hospital, 416 N.E.2d 646 (OH App 1979).