Medicolegal know-how helps clinicians cope with stress in court

October 1, 2008

As the incidence of medical litigation continues to rise in Europe, an increasing number of radiologists are finding themselves in the dock. Any radiologist who ends up in court, either to defend an alleged error of his or her own or to act as an expert witness, should go equipped with a sound knowledge of negligence procedures, according to experts in the field.

As the incidence of medical litigation continues to rise in Europe, an increasing number of radiologists are finding themselves in the dock. Any radiologist who ends up in court, either to defend an alleged error of his or her own or to act as an expert witness, should go equipped with a sound knowledge of negligence procedures, according to experts in the field.

The legal process can be quite difficult for doctors to understand, Prof. Peter Armstrong, a retired professor of radiology at St. Bartholomew's and the Royal London Hospitals, told delegates at this year's U.K. Radiological Congress in Birmingham. Whereas doctors think in terms of big errors and small errors, courts are concerned with causation, the link between a mistake and an adverse outcome.

He demonstrated this essential difference by showing an x-ray of an obvious case of advanced lung cancer. Misdiagnosing the cancer as pneumonia would be regarded as a terrible error by any radiologist. The misdiagnosis would not, however, cause great harm to the patient given the extent of the cancer's spread. The reporting radiologist should not, then, be liable for any damages.

Armstrong drew on his considerable experience as an expert witness to outline the three main types of error that can result in radiologists being sued: missing a lesion, misdiagnosing a lesion, and failing to communicate findings clearly.

Even the most competent radiologists will fail to spot some lesions that are sufficiently large to be identified, he said. The fact that pathology is often missed in clinical practice is no defense in court, however.

"If a radiologist makes a mistake that results in harm to a patient, then he or she can expect to be sued and can expect that the court will award damages," he said.

Misdiagnosis is another reason for medical malpractice proceedings to be instigated. Radiologists can defend against this successfully if they can demonstrate that their interpretation was a legitimate alternative diagnosis. Similarly, missing a lesion can be defended if its size and/or location are such that even in retrospect, a radiologist could not be reasonably expected to identify it as pathology.

Reporting radiologists should also ensure that their diagnosis cannot be misinterpreted and any concerns they have about possible pathology are made clear, Armstrong said. Ambiguous phrasing can lead to a lawsuit even when the radiologist believes no error was made.

"If you think something could be lung cancer or tuberculosis, say so. Don't say, 'This could be a significant lesion,' or a 'highly suspicious lesion.' Don't use these euphemisms because they may be misunderstood," he said.

Radiologists who are sued should try not to take the claims too personally, Armstrong said. His main advice to anyone in that position is to acknowledge if a mistake has been made, accept support from friends and colleagues, and understand the negligence procedures.

"Being sued as a radiologist is enormously stressful. Some people have given up medicine purely because they have gone through a law case," he said. "If you are extremely stressed, it will usually be because you are trying to defend the indefensible."

Anxiety associated with medical negligence cases can affect expert witnesses as well as defendants, according to the Honorable Mr. Justice Peter Kelly, an adjunct professor of law at the National University of Ireland, Maynouth, and a High Court judge in Ireland.

Adverse publicity at the start of court cases can blight doctors' lives, even if they are eventually cleared of any wrongdoing, he said.

"We are all too familiar with the medical malpractice case that begins on the first day with huge coverage of the prosecuting counsel's opening speech to the judge and the evidence given by the plaintiff. When the case finally finishes five or six weeks later, it has disappeared off the newspaper pages completely," he said.

Kelly suggests that mediation should be used more widely as a means of settling medical malpractice suits. Many patients simply want an explanation of what went wrong and why, he said.

He also urges radiologists called to act as expert witnesses to remember the boundaries of their role. Advice should be objective, unbiased, and only on matters within the witness's true expertise. Facts or assumptions that expert opinions are based on should be made clear to the court.

"I have seen on so many occasions expert witnesses who are gently led on to start expressing opinions that are not within their competence. It is almost always fatal to the value given to their evidence," he said.

-By Paula Gould