Applied Radiology

Dr. Gunn and Dr. Deigert are American College of Radiology board certified and practice radiation oncology in Montana. Dr. Gunn is a graduate of Santa Clara University School of Law and Dr. Deigert is a JD candidate at the Concord University School of Law.

Because in the past patients were often not expected to recover from cancer, the radiation oncologist has enjoyed relative freedom from actions for potential negligence. The general public used to believe that anything a physician could do to achieve long-term control of cancer, or even short-term symptom relief, was acceptable or even desirable. That era is coming to an end. Now each side effect of treatment is not only questioned by the patient but likely to be challenged as malpractice.

In the case of surgery, it is the usual complications, not the surgical errors, that result in claims filed. ¹ In the case of radiation therapy, all complications, whether explained before the procedure or not, are now probed by patients and scrutinizing attorneys. The literature anticipates a severe complication rate of 5%; if your patient happens to fall within that group of 5%, more than an eyebrow will be raised. Each complication, whether forewarned by the physician or not, will be viewed as the result of medical negligence until and unless proven otherwise.

A physician who is sued for professional negligence enters a stress-filled arena. Much of the anxiety is due to the unfamiliar legal language. A radiation oncologist may be called a "tortfeasor"--one who commits a "tort." A tort is defined as "a private or civil wrong or injury resulting from a breach of a legal duty that exists by virtue of society's expectations regarding interpersonal conduct rather than by contract or other private relationship." ² The word "tort" comes from the Latin "tortus," meaning "twisted"; the legal profession categorizes these lawsuits as tort negligence cases, or cases concerning twisted events that have caused harm. ³ A tortfeasor is one who harms someone else by twisting the normal situation. Besides hearing unfamiliar legal terms such as these, the radiation oncologist is subjected to the entire game plan of the legal community and may be bombarded with pleadings, motions, interrogatories, and depositions. ⁴

Coupled with this is the defendant's general reaction that he or she was only trying to help the patient. This is the natural outrage of a physician who has provided weeks of daily treatments and examinations as well as months of follow-up care and who now finds that the patient who was cared for carefully is now initiating a lawsuit. Unfortunately, the feelings of anger and distress created by these situations may last for years.

Lawsuit prevention

There is an old dictum that prevention beats cure every time. But can all lawsuits be prevented or is it only possible to reduce the risk of one? The answer of course is the latter, and the only practical thing to do is to take some precautions. For example, there is no substitute for documenting all discussions with patients, family, friends, and technologists, as well as referring and consulting physicians. Even short notes in the chart are helpful. The physician should initial all of the tests he or she reviews. If a test is cancelled, that should be initialed also, with a notation in writing as to the reason for cancellation.

Legal "comparative negligence" occurs when two or more persons are partially responsible for the same injury. If the patient doesn't follow your advice, note it in the chart. If the patient is taking an over-the-counter medicine or herbal remedy, the physician should make note of it and discuss it with him or her. By the way, pointing fingers at an involved colleague almost always ensures a victory for the plaintiff. ⁵ Ironically, there is no clearly documented evidence as to under which conditions malpractice suits are most likely to occur or even as to how often harm is related to actual negligence. ⁶ However, many medical liability companies now require physicians to attend practice-related lawsuit prevention courses or face paying 10% more for malpractice insurance coverage. ¹

Beginning legal actions

Any treatment of cancer is associated with a small but definite incidence of expected complications, some of which are immediate-term and some of which are long-term. Should a complication occur, the radiation oncologist should pore over the patient's records to see that no obvious mistakes in treatments were made. Recorded discussions, recorded data, technologist notes, tests, and prescriptions should all be reviewed. The consent form, if lacking or marginal, can cause an otherwise defendable case to be settled. On the other hand, even when the form is well done and detailed, it does not seem to necessarily have a positive effect on the plaintiff or jury. The physician must also inform the patient of the probable outcomes with, and without, treatment. ⁷

Keep in mind that the plaintiff's attorney, after listening to the incident of alleged negligence, will discuss it informally with a physician friend or acquaintance to ascertain the merits of the case. The attorney then will contact a neutral radiation oncologist to see if there has been a deviation from the standard of care. The standard of care is defined as what a reasonable radiation oncologist of ordinary prudence would do in the defendant's place under like circumstances. Since specialists have a national standard of care, the attorney might contact anyone in the country. When an attorney believes that there is a chance of negligence, he or she contacts experts.

The expert witness

The best contribution an expert can make is whether or not the case is worth pursuing. The expert witnesses are usually contacted by a phone call from the plaintiff's or defendant's attorney. The attorney will request an opinion by return phone call, rather than a written report, because opinions may differ. These written reports are not covered by lawyer-client privilege, and the discovery by the opposing attorney of contradictory written reports can be embarrassing to an attorney.

Some states have a legislative authorized medical-legal panel of two physicians (of the same speciality as the defendant) and two attorneys to act as screening experts to review cases before they are permitted to be filed in court. Their findings are not binding and the result may be privileged and confidential to any subsequent proceedings; but they do influence opposing attorneys on whether to continue lawsuits or not. This mechanism has significantly reduced the number of cases pursued yearly.

The two most common questions put to expert witnesses before and during a trial are demonstrated in the following two scenarios:

1. Since this case had a bad outcome, should the diagnosis have been discovered earlier? If so, would that have altered the outcome in even the slightest degree? Could the patient have lived a few months longer, or have undergone less suffering? Would this earlier discovery have led to different or less morbid treatment?

2. Were the complications this patient developed caused by his or her cancer treatment and, if so, is there anything in the records indicating that the doctor, physicist, technologist, nurse, or equipment caused any deviation from the standard of care?

Should the panel or an expert reviewer say that some liability may be present, the plaintiff's attorney will usually pursue the case and commence further discovery efforts, compiling additional records, interrogatories, and depositions. The plaintiff's experts can be expected to be deposed by the defendant's attorneys and vice versa. The experts are well advised to have reviewed the case extensively prior to this deposition, because considerable time may have elapsed since their original impression and new evidence may be available.

It is also advisable for the expert to have indicated to his hiring attorney just what his fees are and if they are different for consultations, depositions, and trial testimony, if it comes to that. Fees should be scheduled on an hourly basis and not be contingent on the outcome.

Practical points for experts

There are obvious points and subtleties that can help an expert prepare to give testimony. First, answer questions as clearly and simply as possible. It is usually a mistake to amplify explanations with extra details. A cross-examining attorney will probably be at least as conversant with the details and can be expected to seize upon any extraneous comment. The flood of questions that follows may be aimed at discrediting the "expert" part of the expert's testimony.

Physicians are not used to the legal requirement that opinions should be expressed in black and white terms without equivocation. When an expert appears doubtful before a jury, his or her credibility is called into question immediately. It is better to say, "In my opinion, the injury is (or is not) related to the defendant's actions or negligence" than to say, "it might have" or "it could have" been related. ⁸

A cross-examining attorney might well inquire as to the expert witness fees. The attorney might say, "How much are you being paid for your testimony?" The appropriate answer should be, "I'm not being paid for my testimony; I'm being paid for my time." Plaintiff and defendant attorneys should always object if an embarrassing question such as this is asked. The expert should never look at the judge and say, "Do I have to answer that?" since doing so may reflect poorly on the physician as an expert. The judge will always reply, "Yes," anyway.

Opposing experts

Sometimes the expert may be startled to learn the names of opposing experts, since they may be nationally renowned. This really should make little difference to the expert's own testimony if he or she has prepared thoroughly. The expert will have the opportunity to review all depositions in the case before trial. Often an expert may not have reviewed case details in depth, and if he or she appears arrogant to a jury, that expert's opinions may be given less weight.

Because of mutual respect among radiation oncologists, it isn't easy for plaintiff attorneys to find good experts, particularly in the same region as the practicing defendant radiation oncologist. Younger physicians just out of training may think that their style or mode of treatment is the best and only way, but in this field, as in others, it turns out that there are many ways to accomplish the same results. The expert should point this out to the attorney.

The experienced expert puts himself or herself in the shoes of both the plaintiff and defendant, since both the injured plaintiff and the physician defendant deserve the expert's best efforts. It is important for the expert not to testify exclusively for either plaintiffs or defendants lest the expert be labeled as a prostitute for one side or the other.

Settling of suits

Bear in mind that a settlement conference is mandatory in many states before the case proceeds to trial. Both parties, their attorneys, and the insurance representative try to reach a compromise financial settlement. While these conferences are based on the merits of the case, the economics of the proceeding and the uncertainty of jury perceptions are crucial factors in deciding whether to settle. The named physician will be torn between insistence of his nonliability and the likelihood of a verdict for the plaintiff.

Punitive damages--damages to punish the defendant and set an exemplary precedent--are not frequently held in medical legal tort cases of negligence. These damages are not usually covered by liability insurance. However, it is extremely difficult to prove that the physician intentionally and maliciously set out to harm the patient rather than to help him.

While the physician may be certain that the jury would interpret the facts in his or her favor, it is important to remember that most juries will identify with the plaintiff cancer patient more than with the physician. It takes a strong rebuttal to win them over to the defendant's arguments. Documents of the lawsuit that go to a central reporting agency, called the National Practitioners Data Bank, may influence nonsettlement by physicians.

National Practitioners Data Bank

There is a state and national requirement that lawsuits and settlements must be reported to the National Practitioner Data Bank. This is not the type of bank that protects your assets, however. This is an agency that is required to expose your liabilities.

These records are reviewed as part of the inquiries made for renewal of hospital staff privileges and state licenses. Currently, these records are privileged information, but may be open to the public in the future. There is a section provided in the report to the data bank for the physician to explain the circumstances of the lawsuit, and it is extremely important for the physician to do so since it is human nature for others to use this explanation to sanction you. ⁹

Other solutions

Some states have recognized that even frivolous lawsuits against physicians are sometimes settled with compensation to the plaintiff. They have tried to cap the amount of damages that can be awarded, as they do in workers' compensation cases. Attorneys argue, with some credibility, that the few who are negligent must not be supported by the many who are not.

Professional organizations quietly recognize that physicians who have been sued may not try very hard to cure subsequent patients. They may prescribe less dosage to lower the incidence of complications. "Once burned, twice shy," these radiation oncologists may thereafter be afraid to deliver optimal radiation treatment to their patients regardless of how many national experts define proper dosages and tumor-target volumes to give the best chance for cure with "an acceptable complication rate." It is acceptable only to the patients who are not injured. ¹⁰

One approach that has been suggested is to allow patients to subscribe to "complication risk insurance," similar to travel policies sold in airline terminals. Since the expected severe complication risk for a particular treatment can be calculated, such a policy and its costs could be devised.

A final word

In diagnostic radiology, it is the "missed lesion" that is most often the focus of a lawsuit. In therapeutic radiology, it is the complication that is the focus, whether the patient has been forewarned or not. It won't be long before combined chemoradiotherapy complications will be the focus.

There are no known "best" answers for how to avoid lawsuits. It seems simplistic to say, "Be conscientious, pursue ideal treatments, and don't abandon your patients." From training and literature, but primarily from experience, some radiation oncologists develop a sixth sense about not taking on certain patients.

Shall we wait for tort reform in Congress? Don't hold your breath. Perhaps the old saying is right: wisdom comes from experience, and experience comes from not repeating mistakes. In spite of the threat of lawsuits, or because of it, keep trying to do the right thing for your patients and you'll sleep with a clear conscience. AR