Implementing “Loser Pays” in Radiology

During an unusually rainy vacation a few summers ago, some housebound friends and I reacquainted ourselves with the Scrabble board game. This was before anyone with a cell phone could play the game (or imitations thereof) during every waking moment.

It wasn’t long before we encountered a phenomenon with which routine Scrabblers have long been familiar: Differences in opinion on how to handle a “challenge” (when one player believes another has played a non-word and calls him on it). While few disagree that there should be a penalty for trying to score points with a false word, some believe there should also be a penalty for wrongful accusations, lest every single move be argued. Facing a potential consequence, would-be challengers have reason to think twice before casting aspersions.

I originally opposed such rules, feeling that the game was meant to be a fun diversion rather than a stressful contest, but have come to believe that they can serve a valuable purpose...especially in other walks of life, where more is at stake than bragging rights as to who more expertly manipulated some tiles with letters on them.

In the first venue, civil justice, this is far from a new idea. Sometimes termed the “English rule” (more colloquially “loser pays”), it requires that the losing party of a lawsuit cover the other side’s costs. The US is unusual amongst Western democracies in that it does not have such a rule; if you think you are sued frivolously and that your legal harasser should be responsible for your lost time, expense, etc, that’s just too bad for you. Sure, you could try filing a countersuit, but good luck getting anywhere with that.

It probably shouldn’t take something as potentially ruinous as a lawsuit to warrant all parties having some “skin in the game.” I would go so far as to say that unless there’s a compelling reason to the contrary, any time parties with imperfectly-aligned interests are at odds, it shouldn’t be easy for either to take potshots at the other without fear of consequence.

Take, for instance, the universally-adored process of peer review. Many aspects of healthcare (for our purposes, let’s limit it to interpretations of imaging studies) are subject to after-the-fact scrutiny by others on the healthcare team. Whether your CT reading was randomly selected for review or somebody (radiologist, ER doc, surgeon whatever) came across it and disagreed, another party can, with impunity, gripe about anything from major diagnostic errors to your reporting style. You face a spectrum of possible consequences - bad stats in your file, mandated remediation, loss of privileges, etc. The absolute best outcome you can hope for is that you will have a fair chance to plead your case to an impartial judging party (is there such a thing?), and that they will side with you, maintaining your status quo.

And your would-be detractor faces…what? In every peer review model I have seen, nothing. He might have the holiest of intentions - mutually-assisted improvement of skills, optimized patient care, etc…or he might have baser motives, like taking you down a few pegs, getting back at you for some perceived previous injustice, or simply counterbalancing his own (he believes inevitable) dings from peer review, doing unto you before you do unto him lest he stand out as a lower-quality rad. So, what’s to stop him from finding fault with absolutely everything he can, and hoping something sticks? After all, whatever committee has the thankless task of overseeing this process is only human, and capable of judging wrongly itself…especially when overloaded with an excess of claimed diagnostic “misses.”

We can’t seem to gain much ground on the tort-reform front; lawyers write their own rules, and unsurprisingly generally don’t want “loser pays” rules to potentially choke off their stream of revenue. But peer review, at least for now, is more or less under our collective control. Is it not worth reigning in our own demons where we can? I think it’s at least worth an experiment - try out a Scrabble-type principle, wherein anybody submitting a peer review discrepancy, if ruled against, has it counted as his own diagnostic “miss.” And that includes non-radiologist referrers - if they complain that we misread a case of theirs, it should be possible for us to hold them accountable for not providing a reasonable, accurate history which would have made the diagnosis more apparent to us. Or for insisting on performing the wrong study type (CT instead of ultrasound, noncontrast when enhanced was indicated) in the name of non-clinical interests such as “throughput.”

Not only do I predict peer review would generate far less traffic for us with a Scrabble principle in place, but it might just be a little more satisfying. I’m sure the folks at Hasbro would be happy to know that they had made a positive contribution to healthcare.