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 journal.

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.

Case 1

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 occurred.

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 tuft."

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.

Case 2

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 syrinx." 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.

Case 3

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.

Case 4

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 neoplasm." Is this diagnosis correct? Is the recommendation for a CT scan appropriate?

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 findings. ¹ 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.

Discussion

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. ² Whether the abnormality is subtle or not may depend upon whether the observer error falls below the standard of care. ³ 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? ⁴ 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. ⁵ 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 act. ⁶

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. ⁷ 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. ⁸ 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 adverse findings. ⁹

Failure to communicate in a timely and clinically appropriate manner

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 oral report , 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 outcome.

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 written report.

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. ¹⁰ 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. ¹¹

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. ¹²

Conclusion

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 prior reports.

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. AR