Filmless imaging may increase radiology's malpractice liability exposure

Filmless imaging is certain to raise new issues in radiology malpractice and will probably increase liability exposure for many, according to a malpractice defense attorney.

Some of the issues are similar to those that have emerged in teleradiology: Which laws and procedures prevail when an image is generated in one jurisdiction and interpreted in another? This scenario becomes more likely with filmless imaging.

Other questions are unique to the filmless process: With a nearly infinite number of ways to display an image on a monitor, what display standards apply when a plaintiff says a radiologist missed a pathology that should have been noticed?

Generally speaking, the jurisdictional issue is likely to be resolved in favor of the plaintiff, and that can spell trouble for radiologists, said John E. Coffey, a partner in Reed Smith Hazel & Thomas who defends malpractice cases. Coffey spoke in June at the Symposium for Computer Applications in Radiology. Plaintiffs will pick and choose where to file suit, selecting Washington, DC, rather than neighboring Virginia, for example, because Washington jurors tend to be plaintiff-oriented and the District has no cap on damages. Virginia does have a cap on damages, and jurors there are generally more conservative.

Radiologists should make sure their malpractice carrier knows where they are practicing and what their exposure might be, Coffey said.

Most issues unique to filmless imaging involve how liability and evidence will be defined when interpretations are provided based on images that appear only on a monitor. When filmless technology allows these images to be manipulated in numerous ways; how will a court and jury decide what type of presentation or lack of it establishes liability? As a matter of evidence, how will filmless images be presented and at what settings?

One answer will be the development of standards for the presentation of different types of filmless images, Coffey said. The American College of Radiology is developing such standards.

Juror perceptions could be swayed by numerous aspects of filmless imaging, Coffey said. What if a radiologist interpreted an image at home rather than at a hospital, and a film version revealed an overlooked pathology? Jurors could be hostile if they found that the radiologist lived only 20 minutes from the hospital.

Questions involving missed findings, which are always easier to see in hindsight, will multiply in a filmless environment, he said. It is unclear what liability manufacturers will have in a filmless environment. Many of the questions will be resolved in the next four to six years, but there are very few answers today.