The Yawning Chasm Between Safety and Defensibility

January 12, 2018

Medical malpractice woes in radiology.

In an online docs’ forum I intermittently visit, there’s a recent discussion thread of more than a little relevance to us rad folk. It got started by a radiologist observing that, gosh, we’re seeing an awful lot of tiny pulmonary nodules on screening CTs and as incidental findings on other scans. Followed by an innocent enough question as to whether anyone had thoughts about NOT reporting nodules, say, 1-2 mm.

Well, you can imagine the sort of responses that followed, from physicians of multiple specialties (interestingly, no pulmonologists as yet). Varying shades of agreement and dissent, none of which quite implied that the originally posting rad was naïve and/or negligent in thinking that omitting small lesions from a CT report might be a reasonable thing.

I’m not about to get into the academic aspects of the matter-there’s “Lung-RADS” and the Fleischner Society guidelines for that, of which I make routine diagnostic use. What I’m on about today is the responses to the question which, unsurprisingly, focused on its medicolegal aspects.

Some of these expressed the notion that, by citing sources such as those above, you could reference all visible lesions yet still offer some guidance/reassurance to your referring clinicians. For instance, reporting that a single, 1-mm nodule in a low-risk patient required no follow-up according to FS guidelines. Thus, you were “safe” from medicolegal liability if, against all odds, the nodule subsequently grew into a cancer.

As anyone who’s been to the radiological rodeo can tell you (and I daresay many who haven’t), that sentiment is dead wrong. I would say “laughably wrong,” but “tragically” supplants any mirth value. Except, maybe, from those making their living from the med mal machine.

Those who do, will express their (self-)esteemed opinions that, as long as you follow the “standard of care,” you should ultimately be vindicated no matter what aggressive ambulance chaser files a suit alleging that you did wrong. Forgetting for the moment that sometimes legal proceedings don’t go the way one would expect they should, let’s go ahead and assume that vindication is, indeed, something you can bank on.

What that means is that your “standard of care” behavior was defensible. Not what we docs tend to think of as “safe” from the tender mercies of the medicolegal machine.

One can at least understand, if not forgive, the lawyerly types for thinking in this way. The legal system is, after all, their bailiwick. They are comfortable within it, having chosen it as their turf for decades-long careers. If you told one of them that they were going to spend a decent chunk of their time entangled with a case for the next couple of years before they got a resolution out of it, they would probably not perceive it as an imposition or even news.

Not so for us. Merely for getting named in a suit, we docs get to spend the rest of our careers noting it in all applications for licensure and credentialing, even if we were cut loose from the case before it ever got to a court.

Long before such a happy resolution, or even the mention of a court date, we get to endure an indefinite series of appointments, postponements, reschedulings, etc. for depositions and even meetups with our own med mal defenders. And, unlike the legal folks who are being paid for their time, we are being repeatedly pulled away from the practices that butter our bread.

If you want to make one of the lawyers laugh, ask about how you might be reimbursed for all of your time that the opposing side has wasted-or the “pain and suffering” they have caused you during the process, since they seem to place quite a premium value on that phrase under other circumstances.

So, getting back to the matter of the tiny pulmonary nodules, or indeed any such inconsequential imaging incidentalomas with which we routinely clutter our reports, is it ever “safe” to not mention one? A couple of reasons why the answer is a resounding NO:

I know of some rads, and you might as well, who got dragged sideways into the med mal machine for reporting normal studies. That’s right, there was no abnormality that even a hired gun “expert” witness for a plaintiff could point at and allege as a “miss.” The flimsy excuse for naming said rads? That, if they had recommended follow-up studies (just imagine: “Reason for exam: F/U nothing”), or imaging by another modality, a subsequently discovered bit of pathology might have been found earlier.

I even know of cases (having been the unfortunate reader of one) in which the rad who made and communicated the diagnosis of pathology got named in a suit in which other rads and clinicians had not. Of course, the suit named everyone involved. Why name the rad who actually made the diagnosis? Well, the ambulance chasers have no disincentive to do so-as they might have had if they were required to pay for the wrongly accused’s time. If, instead, they had inquired of the rad as to whether he’d serve as a friendly witness, they might have had to throw a few bucks his way (or risk him declining).

Thus, if it’s not even safe to read a study that shows no pathology, or to correctly report an abnormality when you see it-how on Earth could it be safe to refrain from commenting on a ditzel when it’s actually on the image?

Answer: There is no safety. As mentioned on that other forum: The problem is not the 1-mm nodule. The problem is the medicolegal system, and the parasitic way in which it is permitted to function.