ARRS: Malpractice suits decline, challenges persist
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Failure to diagnose breast and lung cancer represent the most frequently cited causes of malpractice suits among radiologists. However, a host of other previous and evolving challenges, such as failure to communicate results, plague the profession, according to Leonard Berlin, MD, vice chair of radiology at NorthShore University Health System in Chicago.
In the 1950s, medical malpractice suits began shifting from malpractice based on alleged negligent acts of commission to alleged acts of omission, or failure to diagnose, offered Berlin. By the 1990s, failure to diagnose lung and breast cancer rose to the top of the list.
At the same time, the numbers of claims per malpractice insurance policy started to dip, with medical malpractice premiums following suit and dropping in cost by 2005. However, infrequent but sizable awards continue to fuel the malpractice industry, Berlin cautioned.
Indeed, he noted, “The lawsuits that are filed may have had more merit than in the past. There are fewer frivolous cases.”
The radiologists’ bind
Radiologists undoubtedly occupy the hot seat in the malpractice arena as they are central to diagnosis in most cases. Studies dating from 1960 to 1992 across multiple academic medical centers further illustrate the challenge.
Retrospective review of chest x-rays found that the percent of missed lung cancers detectable on further review ranged from 40 percent to 90 percent. Similar data exist for mammography, added Berlin.
Guilty verdicts are most common in birth injury and breast cancer suits at about 50 percent, shared Berlin. However, although 40 percent of surveyed mammographers anticipate a suit in the next five years, in reality 10 percent will face a legal challenge.
Other studies have suggested miss rates as high as 30 percent on retrospective review of images with known abnormalities such as lung nodules or pulmonary emboli. However, denominators must be factored into the equation, explained Berlin. That is, the positive findings are mixed with a large number of normal studies.
Consequently, in clinical practice, miss rates hover in the 3 to 4 percent range, and often the misses are not clinically significant. Those that are clinically significant often are found and corrected in time.
Not all errors are created equal
Seventy percent of radiologic errors are perceptual errors which may relate to lesion’s subtlety or poor conspicuity. The balance of errors are errors of cognition; the radiologist sees the abnormality but fails to attach the correct significance to the finding.
Berlin offered several reasons for errors. Satisfaction of search errors occur because radiologists’ sensitivity falls after they detect two or more abnormalities. Alliterative errors occur when radiologists repeat a previous error noted in the report.
Berlin then shared multiple strategies for reducing errors, including:
- Clinical information improves accuracy. Review the clinical data.
- Look at the image again with an attending physician, colleague or in isolation.
However, Berlin described computer-aided detection as double-edged sword because, while it improves sensitivity, it provides an opportunity to make new mistakes, he suggested.
Legal standards and radiology
Most radiology malpractice lawsuits stem from perceived violations of duty and negligence. Radiologists must meet the standard of reasonable and ordinary care, Berlin explained. The question is has the radiologist missed an x-ray finding that would have been missed by an ordinary radiologist. The hitch; however, is that the standard requires radiologists to make a correct diagnosis on all studies.
“The bottom line,” stated Berlin, “is that it’s very difficult to convince a jury that a radiologist should be excused for failing to find all errors on an x-ray.”
Failure of communication: The new wrinkle
Although failure to diagnose is the most common cause of lawsuits, failure of radiologic communication is becoming a more common issue. In fact, failure of radiologic communication is a factor in 80 percent of lawsuits, stated Berlin.
He reviewed the four-part chain of the radiology workflow: image generation, image perception, image interpretation and communication of interpretation.
Radiologists’ duty not does not stop at the medical record, asserted Berlin. “It’s expanded to include communication beyond the medical record.”
The American College of Radiology practice guidelines for communication stress that communication of non-routine reports should be expedited in a manner that reasonably ensures receipt of findings. Applicable reports include those that require immediate or urgent intervention, said Berlin, and also include those that are discrepant from the preceding interpretation or could be seriously adverse to patient health.
Berlin offered several suggestions to help radiologists minimize potential issues in this area, including to:
- Document all communication with physicians and include the date, time and physician’s name.
- Recommend follow-up studies when appropriate.
- Discourage, or at least document, requests for interpretation in the hall or at the curbside.
Another up-and-coming wrinkle in this area is direct communication of results to patients. Pending legislation in Pennsylvania, the Patient Test Result Information Act, would require radiology facilities to send exam results to patients.
A final challenge on the horizon stems from the incidentaloma, the psuedoabnormality detected on an advanced imaging study. “It’s a dilemma whether to report these findings or not,” stated Berlin. That’s because reporting such findings often leads to a cascade of tests and only an occasional diagnosis.
Ultimately, however, Berlin predicted the advent of lawsuits based on alleged errors related to incidentalomas.