Dr. Raskin is a practicing diagnostic radiologist in the
subspecialty of neuroradiology in Fort Lauderdale, FL, and is
the Internal Legal Counsel to the Florida Radiological Society.
He is also a member of the Editorial Board of this
It has been said that experience is the best teacher. But how do
you get experience? You get it by making mistakes. The following
cases are presented so you may gain experience from other peoples'
mistakes. In the cases discussed, the radiologist was sued and lost
the case. As you read each case, see if you can determine what the
radiologist did or did not do that resulted in a lawsuit and why
the radiologist lost. Perhaps, after reading this article, you will
avoid making some of the same mistakes.
A 70-year-old woman with a history of rectal bleeding was sent
for a barium enema at an outpatient center the day after having a
colonoscopy. The colonoscope could be introduced to only
approximately 30 cm. A small benign-appearing polyp was seen in the
rectum, and a biopsy was performed. No significant bleeding
The radiologist performed a barium enema (figure 1) the next
morning and concluded, "Filling defect of lateral cecum as
described, suggest colonoscopy for further evaluation. Retained
feces and minimal scattered diverticular change." It was also noted
in the report that "during the course of the examination, the right
thumb of the patient was caught between the table and the
undercarriage, resulting in a crush fracture of the distal ungual
Should the radiologist have performed the procedure? Was the
radiologist negligent in her report? Could the radiologist be
sued for the fractured thumb?
A postevacuation film showed extravasation of barium on the
right from the rectosigmoid region. In this case, the radiologist
may have fallen below the standard of care by performing a barium
examination of the colon so soon after a biopsy of the rectum was
performed. While the radiologist may not have caused the
perforation, insertion of the enema tip or inflation of the balloon
might have. Nevertheless, the negligence is in not recognizing and
reporting the extravasation. Obviously, not perceiving the
abnormality results in failure to communicate the urgent finding of
perforation of the rectum. Breaking the patient's thumb only adds
more insult. The patient could sue for battery, but this would be
unlikely as the only claim, unless the patient was a Major League
Baseball pitcher. The case was settled for $100,000 by the
radiologist and the hospital.
A 39-year-old man was involved in a bar-room brawl and was taken
to the emergency room complaining of neck pain. Cervical spine
radiographs were read as normal and he was sent home. The next day,
he saw a chiropractor because of persistent neck pain. After 3
weeks of treatment and persistent neck pain that was not improving,
the chiropractor sent him for a nonenhanced MRI scan of the
cervical spine (figure 2).
The impression of the interpretive report was, "There is no
evidence of disc herniation or spinal stenosis. There is a mass
expanding the upper cord. There are several smaller masses in the
mid- and lower cord. This finding is compatible with a large
Is this diagnosis accurate?
Upon receiving the written report, the chiropractor telephoned
the radiologist. The radiologist testified that he told the
chiropractor that the patient needed to see a neurologist. This
conversation was not documented by the radiologist. The neurologist
looked at the films and concluded, as did the radiologist, that
this was a syrinx. Just to be sure, the neurologist called in a
neurosurgeon who also concurred that this was a syrinx and probably
congenital. Does this satisfy the requirement to communicate the
findings? The patient was told that this was a benign condition and
probably congenital and that he didn't need any further workup.
Approximately a year later, after persistent neck pain and
increasing weakness in the upper extremities, an MRI scan with
gadolinium was performed, which showed multiple areas of
enhancement with tumoral cysts (figure 3). Biopsy revealed an
ependymoma. There was testimony against the radiologist that the
findings on the nonenhanced MRI scan were highly suspicious for a
spinal cord tumor and not consistent with a "congenital syrinx."
Legally, the diagnosis does not have to be accurate, only
reasonable. In this case, it was neither. The American College of
Radiology (ACR) Standard for Communication was used against the
radiologist for failure to diagnose and failure to properly
communicate the abnormal results. The jury verdict was against the
radiologist for $565,000.
A 60-year-old man was admitted from the emergency room with a
fever, constant abdominal pain, and draining from a suprapubic
incision. The patient had undergone a right inguinal herniorrhaphy
at a different hospital 1 month previously. A KUB (figure 4) was
performed on the night of admission but was interpreted 2 days
later. The radiologist reported "a ribbon-like radiopaque overlying
the mid-abdomen presumably a surgical drain. Correlation with
clinical history would be helpful." The patient responded to
antibiotics and was discharged 2 days after admission.
Does the radiologist have an obligation to obtain appropriate
clinical information? Is the radiologist responsible for
suggesting the next appropriate procedure? If so, what is the
next appropriate procedure?
The patient was readmitted approximately 3 months later from the
emergency room with a high fever and severe abdominal pain. The
interpretive report indicated that there was a "ribbon-like opacity
overlying the mid-abdomen which may represent a surgical drain."
However, the radiologist suggested a CT scan, which showed a
retained surgical sponge. The initial radiologist fell below the
standard of care by not recognizing that the "ribbon-like opacity"
represented a surgical sponge. There was testimony that the very
reason the "ribbon-like opacity" is placed on a surgical sponge is
so that it will be identified and recognized on an x-ray. While the
radiologist is not obligated to obtain clinical information,
sometimes it might be a good idea to do so, such as in this case.
He also fell below the standard of care by not suggesting the next
appropriate procedure, a CT scan, which would have localized the
opacity within the pelvis 3 months earlier. Furthermore, he failed
to appropriately communicate unexpected findings. The attending
physician claims he never saw the film nor the interpretive report
from the first admission because the report did not reach the
patient's chart until after the patient was discharged. The initial
radiologist was unaware of the recent herniorrhaphy at a different
hospital. The surgeon, as well as the hospital where the
herniorrhaphy was performed, settled out of court, as did the
radiologist, the emergency room physician, the attending physician,
and the hospital for the second admission.
A 45-year-old man with a history of "rule out pneumonia." A
prior chest x-ray from 1 year earlier was normal. The radiologist,
who was doing a 1-day locum at a clinic, interpreted the chest
radiograph (figure 5) as "Interval development of a new 2 cm mass
density in the left lower lung as described above for which CT
examination is recommended for further evaluation to rule out
Is this diagnosis correct? Is the recommendation for a CT scan
The radiologist was so excited with the finding that he walked
down to the clinic to see if the ordering physician was there. He
could not find the ordering physician, and the clinic personnel
referred the radiologist to someone else whose name he doesn't
remember. He told them to be sure to tell the referring physician
of the abnormal findings and assumed that this person would advise
the referring physician of the serious nature of the problem.
This is a case in which the radiologist correctly interpreted
the findings and rendered an appropriate written report. However,
at deposition, the radiologist admitted that he was not aware of
the policy at the clinic for directly notifying referring
physicians of an urgent abnormal finding, nor was he aware of the
ACR Standard for Communication, which recommends direct
communication, in person or by telephone, to the referring
physician or appropriate representative, of significant unexpected
Further, he admitted that he did not document the chart or the
interpretive report to indicate that the results were communicated.
A biopsy of the lung mass revealed a malignant fibrous histiocytoma
(spindle cell neoplasm) of the lung, and the patient died
approximately 1 year later. The jury awarded $600,000 to the wife
of the deceased patient.
In general, there are four main reasons why radiologists get
sued: errors in perception, errors in interpretation, failure to
suggest the next appropriate procedure, and failure to communicate
in a timely and clinically appropriate manner.
Errors in perception
This is also called a "miss" or a "missed diagnosis." The
finding is missed but it is really there in retrospect. Perceptual
errors are the most common reason why radiologists get sued--the
abnormality just wasn't seen. Unfortunately, perception errors
occur quite often.
Whether the abnormality is subtle or not may depend upon whether
the observer error falls below the standard of care.
Ultimately, it will depend upon the results of the missed finding.
Lawsuits brought because of these types of errors are usually
settled since jury verdicts are against the defendant radiologist
four out of five times.
Of course, the abnormality is always perceived in retrospect,
but the real question is: was it below the standard of care for the
radiologist not to have picked it up?
Although there have been a few cases in which the jury was
convinced that missing a radiographic abnormality is not
malpractice, they have been few and far between. A Wisconsin Court
of Appeals determined that errors in perception by radiologists
viewing x-rays can occur in the absence of negligence.
Nevertheless, it may be difficult to defend the radiologist before
a jury when the radiologist has failed to perceive an abnormality
that even the jurors can see. It is unfortunate, but the public
seems to believe that every radiologic error represents a negligent
An additional source of error results from the influence a
radiology report has over another radiologist. This type of
perceptual error occurs because the radiologist reads the old
report before looking at the films.
If the first radiologist missed it, the next one will likely miss
it as well.
Errors in interpretation
An error in interpretation occurs when an abnormality is
perceived but it is incorrectly described. This is also called a
misdiagnosis and most often occurs when a malignant lesion is
called benign. A misdiagnosis can also occur when a normal
structure or variant of normal is called abnormal. This situation
occurs more commonly in ultrasound studies and CT studies. When
lawsuits involving interpretation errors go to trial, four out of
five cases are found in favor of the radiologist.
Having an appropriate differential diagnosis can be of help
here, especially if the correct diagnosis was included in your
differential diagnosis. However, "blanket diagnoses," such as
"probably benign but malignancy cannot be ruled out" are usually
not successful if the results are grave.
Failure to suggest the next appropriate procedure
Most ordering physicians actually know the next appropriate
procedure to order when an abnormality is found on the imaging
study they originally ordered. However, if the patient becomes a
plaintiff in a lawsuit against the ordering physician, you can
almost be assured that the ordering physician will claim ignorance
as to what to do next because the radiologist didn't specify what
to order next. However, with some of the newer studies (such as
functional MRI scans, diffusion MRI scans for recent infarction,
PET scans for recurrent metastasis, and SPECT scans), the ordering
physician may be unaware of their efficacy and appropriateness.
While some radiologists might suggest additional studies to
increase referrals, the prudent radiologist will suggest the next
appropriate procedure based upon the findings and the clinical
information. This should not be construed as self-referral.
Radiologists must ensure that their recommendations or suggestions
for any additional radiologic procedures are appropriate and will
add meaningful information to clarify, confirm, or rule out the
initial impression. A Missouri appellate court recently held that a
radiologist has a duty of continuing care including following up to
assure that the treating physician acts on reconsideration or
Failure to communicate in a timely and clinically
This cause of action has been increasing as a reason that
radiologists are sued. In addition to rendering an official
interpretation (a final written report), the radiologist is
responsible for communicating these findings directly to the
referring physician, another healthcare provider, or an appropriate
representative in situations in which the radiologist feels that
immediate patient treatment is indicated or significant unexpected
findings are present. The ACR Standard for Communication indicates
that direct communication can be accomplished in person or by
telephone. This is an
, which should be documented, because the final written report does
not substitute for direct communication. The radiologist who
insists that the written report provided all the information that
the referring physician needed will be perceived as uncaring and
callous if a simple telephone call could have averted a bad
The ACR thoroughly understands that an accurate written report
would not substitute for direct communication when immediate
patient treatment is indicated or when significant unexpected
findings are present. In fact, the ACR Standard for Communication
addresses direct communication in a separate section from the
A radiologist who correctly diagnosed a radial head fracture of
a child--a head fracture that was missed by the emergency room
physician--argued that his liability should end when he correctly
dictated the report. The Court of Appeals of Ohio disagreed and
stressed that the communication of a diagnosis, if it is to be
beneficial, is sometimes as important as the diagnosis itself.
Similarly, a New Jersey appellate court has held that communication
of an unusual finding so that it may be utilized beneficially is as
important as the finding itself.
Attempts to show that the ACR Standard is merely a "guideline"
and only one of the factors to be considered in determining the
standard of care have been largely unsuccessful. Like it or not,
the ACR Standard will be interpreted to mean "reasonable care"
--anything less will be below the standard of care.
All is not bleak--there are some positive risk-management steps
you can take to reduce the risk of being sued and losing. Studies
have shown that perception errors will occur even with the
best-trained radiologists. However, some perception errors can be
minimized by paying proper attention to clinical information when
it is given or by obtaining clinical information when it is not
given. Also, a radiologist should look at the films before reading
Errors in interpretation can be minimized through continuing
education. Attending conferences and meetings and reading journals
will help broaden your horizon and improve your differential
diagnosis. Your chances of losing a lawsuit are reduced if the
actual diagnosis is included in your differential diagnosis.
However, more things are missed because they are just not thought
of in the first place.
When it is appropriate, a radiologist should not be afraid to
indicate that an additional radiologic procedure may be of
diagnostic or confirmatory value when the initial diagnosis is not
clear or is in doubt. With many of the newer modalities now
available in diagnostic imaging, not all referring physicians will
be familiar with what procedure to do next.
Lack of appropriate and timely communication appears to be one
of the greatest problems confronting radiologists today. However,
this is the one area in which a radiologist can dramatically
improve the odds against being sued--by communicating and
documenting the communication. The ACR Standard for Communication
should be read thoroughly until it is completely understood and
implemented by every radiologist.